
    George D. Farrar, as Executor, etc., of Sarah Ellen Theall, Deceased, Appellant, v. The Farmers' Loan and Trust Company, as Executor of Horace Theall, Deceased, Substituted as Defendant in the Place of The Institution for the Savings of Merchants' Clerks, Respondent.
    
      Witness—disqualification of, to testify to a personal transaction with a decedent— the party alleging it must pn'ove it—when a specific legacy does not disqualify the legatee—a witness to a cdmersation not pa/rtiaipating therein either by word or sign is not disqualified.
    
    In an action brought by the executor of Sarah Ellen Theall against the executor of Horace Theall to recover the amount of a bank deposit standing in the name of “ Sarah E. Theall in trust for Horace Theall,” the daughter of Mrs. Theall was called by the plaintiff to testify to a conversation between Mrs. Theall and the cashier of the bank at the time the account was opened. Such testimony was excluded on the ground that it was within the prohibition of section 829 of the Code of Civil Procedure.
    The witness was a beneficiary of both the plaintiff’s testatrix and the defendant’s testator, but the nature of her interest in the estate of the plaintiff’s testatrix did not appear.
    
      
      Meld, that it was incumbent upon the defendant to establish the disqualification .of the witness;
    That, as it did not appear but that the witness was entitled only to a specific legacy under the will of the plaintiff’s testatrix, and that the estate was entirely sufficient to satisfy such legacy, it could not be said that she was interested in a recovery by the plaintiff;
    That, as it did not appear that the witness had participated, either by word or by sign, in the conversation, concerning which she was asked to testify, the testimony did not relate to any personal transaction or communication between herself and the deceased;
    That, consequently, it was error for the court to exclude the testimony in question.
    Appeal, by the plaintiff, George D. Farrar, as executor,, etc., of Sarah Ellen Theall, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 26th day of June, 1902, upon the report of a referee.
    
      Theodore LL. Lord, for the appellant.
    ■ Da/oid MoOlure, for the respondent.
   O’Bbien, J.: ■

The action was brought by the executor of Mrs. Sarah Ellen Theall to recover from a bank a deposit therein in the name of- “ Sarah E. Theall in trust for Horace Theall.” The Farmers’ Loan and Trust Company, by order of interpleader, as executor of the will of Horace Theall, deceased, was substituted in place of the bank as defendant. The issues were referred, and from the judgment entered upon the decision of the referee the plaintiff ajipeals;

We think the judgment must be reversed for an error committed in excluding, on the defendant’s objection, the testimony of Mrs. Sarah J. Farrar, the daughter of Mrs. Theall, relating to a conversation between Mrs. Theall and the cashier of the bank at the time the account was opened. Such testimony was excluded upon the ground that it was within the prohibition of section 829 of the Code of Civil Procedure.-

Whether Mrs. Farrar, the witness whose testimony was objected to, was or was not interested in the event of the controversy, was not made to appear. It was stipulated.in the case that she was a beneficiary under the will Of Mrs. Theall; but to what extent she was a beneficiary, whether as a legatee or otherwise, was not shown nor was that fact stipulated. The rule has been frequently stated that one asserting that a witness is incompetent to testify on account of a statutory prohibition, has the burden of establishing the disqualification. (Griffiths v. Metropolitan St. Ry. Co., 171 N. Y. 106; Green v. Metropolitan St. Ry. Co., Id. 201; Whitmam, v. Foley, 125 id. 651; City of Cohoes v. D. & H. C. Co., 134 id. 397.)

Here the witness was a beneficiary of both the plaintiffs testatrix and defendant’s testator, but, as stated, the nature of her interest in her mother’s estate does not appear. If entitled only to a specific legacy, the estate may be entirely sufficient to satisfy this claim, in which event she would have no interest in this action brought by the executor to recover personal property of the deceased. (Carpenter v. Soule, 88 N. Y. 251).

Apart, however, from this feature of the case, we do not think that the testimony sought to be elicited from Mrs. Farrar related to any personal transaction or communication between herself and the testatrix, as that phrase “ personal transaction or communication ” has been construed by the decisions. It is unnecessary to refer to the numerous cases bearing upon this subject as they have been very ably and fully collated and discussed in the recent opinion in Hutton v. Smith (175 N. Y. 375), which, as the latest expression •of the Court of Appeals, it is our duty to follow. In O'Brien v. Weiler (140 N. Y. 281) it was held that a witness was not precluded from testifying to a conversation between the testator and another in his presence in which he took no part, although interested in the event. In commenting upon this decision and the cases cited in its ■support, Chief Judge Parker says in Hutton v. Smith (supra) that the rule was too broadly stated and continues: “It has now been limited to this extent at least that all conversations or transactions between persons since deceased and a third party in the presence or hearing of the witness may not be testified to by such witness if he by word or sign participated in the transaction or conversation or is .referred to in the course of it or was in any way a party to it.”

We assume, therefore, that, as thus limited, the rule in O'Brien v. Weiler is still the law in this State; and as here Mrs. Farrar was asked only to state the conversation between the cashier of the bank and the deceased, and it does not appear that she had in such conversation by word or sign participated,” or that she was referred to therein or that she was a party thereto, she was not either under O’Brien v. Weiler (supra) or under the decision in Hutton v. Smith (supra), disqualified.

For the error, therefore, in excluding her testimony the judgment must be reversed and a new .trial ordered, with costs to the appellant to abide the event. '

Yah Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ.,, concurred.-

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