
    Sarah Jane Farrar, Appellant, v. The Farmers’ Loan and Trust Company, as Executor of Horace Theall, Deceased, Respondent.
    
      Devise — trust to pay rents to the testatrix’s husband 'and daughter, and, in case of their payment of a •■mortgage on the pi’operty, to allow them to occupy it— right of the trustee to testify, in an action to recover one-half of the amount of the- ■ mortgage paid, by the daughter, as to statements made by the husband-, then deceased, ■ in reference to the payment of the mortgage.
    
    " Sarah E. Theall died 'June 9, 1898, learning a will, by which she devised* a house, upon which' there was a purchase-money mortgage to her executor .in trust, “ for the following uses and purposes: to let and rent the same for and during the joint lives of my said husband and daughter, and after deducting from the rent thereof all sums necessary to he paid for interest, taxes or assessments, insurance and repairs, to pay over the rents, issues and profits to my said husband and daughter equally during their joint lives. But I do further order and direct that my said husband and daughter shall pay (one-half thereof each) the sum due on the mortgage now upon said house and lot, and upon their so doing, and upon their paying (equally) all taxes, insurance and repairs, then and in that case, instead of. letting and-rentmg.said: house, my said executor is hereby directed to permit my said husband and daughter jointly to occupy said house so long as they shall jointly agree so to do.”
    The will further provided: “ Upon the decease of my said husband or daughter, as the case may be, I give and devise said house and lot to the survivor of them at once and absolutely.”
    At the time of her death the testatrix was living with her husband and daughter in the house referred to. After her death the husband and daughter continued to reside in the house for several days, when the husband went away for a short time. He died on August 22,1896, prior to his return. Subsequent to his death the daughter paid the mortgage.
    The daughter then brought an action against the executor of the testatrix’s husband to recover one-half of the amount paid in satisfaction of the mortgage, upon the theory that the testatrix’s husband, with knowledge of the terms and conditions of the will, expressly accepted its provisions and occupied the house jointly with the plaintiff from the time of the testatrix’s death until his own death.
    Upon the trial the plaintiff called as a witness the executor of the testatrix, wholes tified that, after the death of the testatrix, he read the will to the testatrix’s husband and had a conversation with him in reference to it. The witness was then asked the following questions: “ Q. Will you state what that conversation was?” (2) “Q. In that conversation did Horace Theall state to you whether or not he accepted the provisions of the will?” (3) “Q. Did Horace Theall state whether or not he would pay one-half of the mortgage on the Twenty-first street house?” (4) “ Q. Did he make any statement relative to his intention as to his living in the house or paying a part of the running expenses thereof, or paying for the repairs thereof, or paying one-half of the mortgage?”
    
      Held, that the testimony sought to be elicited from the witness was not incompetent under section 829 of the Code of Civil Procedure;
    That it could not be said that the answers to the questions would have been irrelevant or immaterial;
    That, under the will of the testatrix, if her husband and daughter assumed and agreed to pay the mortgage and taxes, insurance and repairs, they were entitled to occupy the house instead of receiving the rent.
    Appeal by the plaintiff, Sarah Jane Farrar, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of June, 1902, upon the report of a referee dismissing the complaint upon the merits.
    
      
      Theodore LL. Lord, for the appellant.
    
      Damid McClure, for the respondent.
   ¡McLaughlin, J.: .

• This action- was brought to recover from the defendant one-half of the amount paid to satisfy a mortgage upon certain real estate. The issues were referred to a referee to hear and determine, and at the conclusion of the trial he made a report dismissing the complaint upon the merits, upon which judgment was entered to. that effect, from which plaintiff has appealed.

There is no dispute as to the facts. On the 9th of June, 1896, Sarah E. Theall, the mother of this plaintiff and wife of Horace Theall — defendant’s testator — was seized of certain estate in the -city of Hew York, upon which there was a purchase-money mortgage. She disposed of such property by the 3d clause of her willj which reads as follows: “ Third. I give, and devise my house and "the lot on which it stands, known as Street Humber 113 West 21st-¡street, in-Hew York City, to my executor, in trust, nevertheless, for the following uses and purposes : to let and rent the same fór and ■during the joint lives of my said husband and daughter, and after •deducting from, the rent thereof all sums necessary to be paid for interest, taxes or assessments, insurance and repairs, to pay over the rents, issues and profits to my said husband and daughter equally •during their joint lives. But I do further order and direct that my ¡said husband and daughter shall pay (one-half thereof each), the sum due on the mortgage now upon said house and lot,- and upon their so doing, and upon their paying (equally) all taxes, insurance and repairs, then and in that case, instead of letting and renting said ¡house, my said executor is hereby directed to permit my said husband and daughter jointly to occupy said house so long as they shall jointly agree so to do.” And the 4th clause of the will provided : Upon the decease of my said husband or daughter, as the case may be, 1 give and devise said house and. lot to the survivor of them at once and absolutely.”.

- Prior to, and at the time of, her' death Mrs. Theall was living in the house referred to with her husband and. daughter, and thereafter they continued to reside there for several days, when he went away for a short time, and before his return, and on August 22, 1896, he died, also leaving a will which was admitted to probate and letters testamentary were issued to the defendant, who qualified, has since been and now is acting as the executor thereof. Subsequent to his death, in order to prevent a foreclosure of the mortgage referred to in the 3d clause, above quoted, of the will of Mrs. Theall, the plaintiff paid the amount due thereon and then brought this action to recover from the defendant one-half of such sum, basing her right to such recovery, as appears from the allegations of the complaint, upon the fact that Mr. Theall, with knowledge of the terms and conditions of his wife’s will, expressly accepted its provisions and jointly with the plaintiff occupied the house from the time of the death of Mrs. Theall until his own death.

At the trial the will of Mrs. Theall was put in evidence, and then •one George D. Farrar, the executor therein named, was called as a witness by the plaintiff, and after testifying to some of the foregoing facts, he stated that subsequent to the death of Mrs. Theall he read her will to her husband and then had a conversation with him in reference to it. He was then asked the following questions: (1) Q. Will you state what that conversation was 1 ” (2) “ Q. In that conversation did Horace Theall state to you whether or not he accepted the provisions of the will ? ” (3) “ Q. Did Horace Theall state whether or not he would pay one-half of the mortgage on the Twenty-first street house % ” (4) “ Q. Did he make any statement relative to his intention as to his living in the house or paying a part •of the running expenses thereof, or paying for the repairs thereof, or paying one-half of the mortgage ? ” Each of which was objected to upon the ground that it was immaterial and irrelevant and, under ■section 829 of the Code of Civil Procedure, incompetent. The •objections were sustained and an exception taken in each instance.

We are of the opinion that the exceptions were well taken. The testimony sought to be elicited from this witness was not incompetent under section 829 of the Code of Civil Procedure. The action is brought to recover from the estate of Horace Theall one-half of the amount alleged to have been paid by the plaintiff to satisfy a mortgage upon the real estate owned by Mrs. Theall at the time of .her death, and under her will the payment of this mortgage was to be assumed by Horace Theall and the plaintiff — each being required to pay one-half thereof in case they occupied the house. A conversation, therefore, between Farrar, the executor of Mrs. Theall’s will, ■ and Horace Theall, a beneficiary thereunder, did not call for any personal transaction between the deceased and a person interested in the event of the action or a person from, through or under whom ■ such party or interested person derived his interest or title. Whatever interest the plaintiff had in the action she acquired by virtue of the provisions of the will of her mother and the subsequent payment by her of the mortgage. She had acquired nothing from the executor in Mrs. Theall’s will, nor did her interest in any way depend upon his act, nor did he have any interest in the subject-matter of the action. He was not, therefore, being examined either in his own behalf or in behalf of a party succeeding to liis title .or interest. (Wallace v. Straus, 113 N. Y. 238.) If we are correct in this, then it follows that the testimony ought not to have been excluded on the ground that it was incompetent under the section of the Oode referred to.

Rbr can it be said that the answers to such questions would have been irrelevant or immaterial. - It is hardly necessary to speculate on what the answers would have been had the witness been permitted to give them, but it is possible they would have tended to establish that Mr. Theall, after the death .of his wife, with full knowledge of the conditions and provisions of her will, stated that he and his daughter would occupy the house; that he had entered into an arrangement with her that if a demand were made for the-payment of the mortgage, she would advance a sum sufficient to-pay it off and that he was thereafter to pay her his share, or that she -was to have a claim for such sum against his estate, in case of his death, and by reason of such agreement she paid the mortgage. If such facts had been made to appear it can hardly be said that they would have been irrelevant or immaterial. (Wright v. Garlinghouse, 26 N. Y. 539; Wellington v. Kelly, 84 id. 543; City of Albany v. McNamara, 117 id. 168.) The provision of the will relating to the rent was made for the benefit of the plaintiff' and Mrs. Theall’s husband, and we think the correct construction to be placed upon it is that upon the husband and plaintiff assuming and agreeing to pay the mortgage, taxes, insurance and repairs,, they were entitled to occupy the house instead of receiving the ■ rent; and if this be the correct construction, then, clearly, the testimony which was excluded bore directly upon the subject which was being investigated.

The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  