
    Wallace Watson, Respondent, v. Arthur Newell, as Administrator, etc., of Alice E. Smith, Deceased, Appellant.
    Third Department,
    July 8, 1913.
    Evidence — action against administrator upon promissory note — defense of forgery — evidence of administrator as to conversations with plaintiff—testimony of lay witness as to consciousness of a person.
    Where in an action against an administrator upon a promissory note purporting to have been made by the defendant’s intestate and payable to the order of the plaintiff one day after date, the defendant claimed that the note was a forgery, and that if genuine it was without consideration and obtained by fraud; and it appeared that decedent at the time of her death was unmarried, and her nearest relatives were an aunt and cousins, of whom the defendant was one, and that she had known the plaintiff for about twenty years, it was error to exclude testimony of the defendant prior to his appointment as administrator as to conversations with the plaintiff with reference to a claim held by the latter against the decedent. It was also error to exclude testimony of a witness called by the defendant as to whether a sister of the deceased was conscious or unconscious at the time when a witness for the plaintiff testified to having a conversation with her and the decedent relative to the disposition of the latter’s property, and a judgment in favor of the plaintiff should be reversed and a new trial granted.
    A lay witness may testify as to the consciousness or unconsciousness of a person,
    
      • Appeal by the defendant, Arthur Newell, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 24th day of June, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. ' .
    
      Conger & Orvis [Arthur W. Orvis of counsel], for the appellant.
    
      Abbott & Dolan [James C. Dolan of counsel], for the respondent.
   Lyon, J.:

This action was brought to .recover the amount of a promissory note for $4,000 of date September 3, 1909, bearing the name of defendant’s intestate as maker, and payable to the order of plaintiff one day after date. The defense was that the note was a forgery, but if genuine was without consideration and was obtained by fraud and was void.

Decedent died December 6, 1909, aged about sixty years, owning in real estate the place occupied by her and by plaintiff’s family, where she died, worth about $2,000,.and about $2,000 of personal property. She was unmarried and her nearest relatives were an aunt, who lived in the west, and cousins, of whom the defendant was one. She had been well acquainted with the plaintiff for upwards of twenty years, and at various times during that period he had lived in her father’s family and her own. The precise date of the appointment of defendant as administrator does not appear otherwise than that it was prior to the 17th day of February, 1910. , Called as a witness in his own behalf, he testified that up to that time he had seen the plaintiff several times after the death of his intestate, and said something to him about the renting of the place, and he presumed may have had three or four talks with him. The question was then asked him by his attorney: Q. Did he in any of those conversations say anything about having a claim against Miss Smith or an offset against the rent ? Objected to as incompetent, irrelevant and leading. Objection sustained; exception taken.” The respondent claims that the exclusion of this testimony was not error for the reason that the witness had not, at the time these conversations were had, been appointed administrator of the estate, and, hence, that there was no duty on the part of the plaintiff to state to the witness that he held this note, while the appellant claims that the testimony bore directly upon the contention of defendant that plaintiff did not have the note at the times of these conversations, but later forged it when he found that decedent had left no will giving him her property.

We think that the ruling was erroneous. From the testimony of the plaintiff it appears that the heirs met at the house and talked over the matter of the appointment of the administrator, but the date of the meeting is not stated. However, from the fact that the defendant was at the house about the middle of January for the purpose of taking the inventory, as he testifies, it may be inferred that prior to that time he had been agreed upon by the heirs as the person to be appointed administrator. But in any event as an heir at law, and hence as- a tenant in common of the real estate, and also as one of the next of kin of decedent, he was personally interested in all the assets of the estate. As the questions indicated, the conversations had between plaintiff and the witness related in part at least to the rentals of the place, and it would have been natural for the plaintiff to have claimed an offset had he possessed one, and the fact whether or not he made such claim was a material and proper subject for consideration by the jury.

Regarding the other ruling complained of by appellant, it appears that near the close of the trial the plaintiff called Mrs. Jennie Ferguson, who testified that three days before the death of Mrs. Kealey, who was a sister of defendant’s intestate, with whom she resided, and who died about April 1, 1909, Mrs. Kealey said to the witness in the presence of decedent, who was sitting on the side of the bed, that the plaintiff was their friend and the friend of their old father and “now we have made up our minds if there is anything left after Alice gets through, that it goes to Mr. Watson,” and she said, “We have arranged that.” Mrs. Ferguson also testified to a conversation with decedent’s intestate the day preceding her death in which Mrs. Ferguson testified that decedent again gave expression to her sense of obligation to Mr. Watson, and in which she told the witness that she had not made a will, but said, I have made something that is just as good, and it goes to Mr. Watson because I feel that he deserves it.” The witness was considered an important one for plaintiff. For the purpose of contradicting her testimony defendant called Bertha Bennett, whose testimony appears in the record as follows: I live in Gouverneur. I know Mrs. Jennie Ferguson. I knew Alice E. Smith. I remember the time when Mrs. Kealey died. I was there twice a day for, I think, two weeks anyway before she died. Q. Was she conscious or unconscious at that time ? [Objected to as incompetent and immaterial and no foundation has been laid for the testimony. Objection sustained. Exception.] ”

We think the exclusion of this testimony was also error. The defendant had the right to show if he could'that on these occasions of the visits of the witness twice daily during the two weeks preceding the death of Mrs. Kealey she was unconscious, as bearing upon the probability of the conversation testified to by Mrs. Ferguson having taken place. A lay witness may testify as to the consciousness or unconsciousness of a person. (Chicago City Railway Co. v. Van Vleck, 143 Ill. 480.)

- As a new trial must be had in which the evidence as to the consideration for the note may differ from that included in the present record, we do not pass upon that question at this time.

The judgment and order appealed from must be reversed, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  