
    William S. O’Brien et al., Ex’rs, Resp’ts, v. Peter R. Weiler, Ex’r, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 5, 1893.)
    
    1. Witness—Competency—Code Civ. Pbo., § 829.
    A release by a life tenant of her interest or claim to the moneys involved to which she and the remainderman are parties plaintiff against the executor of a claimant of the fund, does not render her a competent witness to testify in behalf of her co-plaintiff to a personal transaction with defendant’s testator, as the co-plaintifE in such case is her successor in interest.
    3. Same.
    An error in overruling an objection to a question calling for such a transaction or conversation, however, does not require a reversal of the judgment where the answer states only an interview between the deceased and another party in the presence of the witness, in which the latter took no part.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiffs.
    
      John D. Townsend, for app’lt; Abram Kling, for resp’ts.
    
      
      Affirming 52 St. Rep., 17.
    
   Maynard, J.

The plaintiffs, as executor and executrix of the will of Peter T. O'Brien, deceased, brought this action against the Citizens’ Savings Bank of Hew York city to recover the sum of $3,076 standing to the credit of their testator as gtiardian of his daughter, Sarah E. O’Brien, upon the books of the bank, and which was originally deposited in 1871. Sarah E. O’Brien married the defendant Peter Weiler, and died intestate, and her husband was appointed the administrator of her estate; and in that capacity claimed the moneys standing to the credit of the father as her guardian upon the books of the bank. Upon the motion of the bank he was substituted as defendant in its place, and it was directed to hold the moneys subject to the order of the court when final judgment should be entered in the' action. Weiler was also one of the executors of the father’s will, and having refused to unite with the plaintiffs in bringing the aetion, he-was also made defendant in that capacity. The real issue litigated was the title to this fund. By the will of Peter T. O’Brien, the use of his entire estate, including these moneys, if recovered, was given to his widow, the plaintiff Freelove E. O’Brien, who is plaintiff in her capacity of executrix, and after her death the principal is bequeathed to his son, William S. O’Brien, who, as executor, is her co-plaintiff.

Upon the trial it became important to prove by the mother, the plaintiff Freelove E. O’Brien, a conversation between the father and daughter which took place in her presence. After she had been sworn as a witness the plaintiff put in evidence a writing executed by her under seal, and entitled in this action, in which she recited that whereas she had been produced , as a witness and had been objected to on the ground that she was interested therein, because under the will of her husband she was entitled to the whole income of his estate during her life, and would be entitled to the income upon the money in litigation in this action, therefore, in consideration of one dollar to her in hand paid, she thereby released and discharged the executors of the estate of and from all interest or claim she might have to the moneys involved in this action, and to the interest and income thereof.

She was then asked this question, “ Do you recollect any interview or conversation taking place in January, 1881, in reference to any moneys in a savings bank between your husband and your daughter and yourself; if so, state fully what it was,” which was objected to on the ground that the-witness was incompetent to testify to such a transaction or conversation, she being a party in interest. The objection was overruled, an exception taken, and the witness answered the question. It is plain that whatever interest the witness had in the fund in controversy was by virtue of this release transferred to her co-plaintiff, who, by the terms of the will, took the entire estate, subject only to the right of the witness to the income during her life. Even if the legal title was vested in the executors, he was one of the executors, but they held the legal title for the beneficiaries under the will, and as he had become the sole beneficiary so far as this fund was concerned, he had both personally and as executor acquired an interest in the subject of the controversy from the witness.

Section 829 of the Code prohibits a person from, through or under whom a party or person interested in the event of an action derives his interest or title by assignment or otherwise, from testifying in behalf of the party succeeding to his title or interest against the representatives of a deceased person as to any personal transaction or communication between the witness and the deceased. William S. O’Brien was both a party to the action and interested in the event of it. He derived his title to the income of this fund by assignment from his mother. She was under examination as a witness against the administrator of the daughter, and the question objected to called for a personal transaction and communication between her and the defendant’s intestate. All the conditions, therefore, existed which made the statutory prohibition applicable; the objection was well taken; and if any material injury resulted to the appellant because it was overruled the exception presents grounds for the reversal of the j udgment.

The form by which the transfer of interest is accomplished is not important. The effect alone is to be considered. If a general release is adopted, and it results in vesting the title to the property released in another person who is a party to the action or interested in its event, the witness is not by the execution of the release rendered competent to testify. If the party in whose behalf the witness is examined takes by assignment or otherwise ” from the witness, the examination cannot be allowed. The policy of the statute rests upon different grounds from the common-law rule excluding the evidence of interested witnesses. The examination is prohibited in the special cases mentioned, not simply on account of interest, but mainly upon the ground of the enforced silence of the other interested party to the transaction. If living he might give such an account of it as would materially affect the credibility of the surviving actor. It was not deemed fair to permit an interested party to have the benefit of testimony which might appear in a different light, or which might not be given at all, if the examination of the adverse party could be secured.

The restriction was not limited to an interested witness, called in his own behalf, but extends to all cases where it is sought to-examine the witness in behalf of a party or person interested in the event who derives title to the subject matter of the action by assignment or otherwise from the witness as against the representatives or assignee of a deceased person. If it is claimed that the witness has divested himself of interest, it does not follow that he is thereby rendered competent. The test is to be sought in the legal effect of the instrument by means of which his interest was extinguished. It matters not by what name it is called; if it operates in law to vest in another party to the action, or in a person interested in its event, the title or interest which the witness formerly had, the prohibition remains if it is proposed to use the testimony of the witness in behalf of his successor in interest The respondent cites In re Wilson, 103 N. Y., 374; 3 St. Rep., 613, and Loder v. Whelpley, 111 N. Y., 239; 19 St. Rep., 631, but they do not appear to be applicable. They were proceedings for the probate of wills, contested for the want of testamentary capacity. The witnesses offered were legatees under the will, and they executed a general release and discharge of their legacies. They were not offered as witnesses in behalf of any party to the proceeding or person interested in its event who had succeeded to their interest as legatees, and they were, therefore, held not incompetent to testify with reference to a personal transaction or communication with the testator.

While it must be held that in this case the instrument of release did not obviate the objection to the witness’ competency, still it was not reversible error to overrule the objection, unless the witness was, in fact, examined as to a conversation with the ■deceased in which she participated. It is not sufficient to require the exclusion of her evidence to show that it related to a transaction between the deceased and another in her presence, but in which she took no part. Cary v. White, 59 N. Y., 336 ; Simmons v. Havens, 101 id., 427. While the question called for a conversation with herself, the answer stated only an interview between the father aud the daughter, of which the witness was a silent auditor. She states that the two came into her room, and the husband said to the daughter that he had taken all her money out of the bank and bought railroad stocks with it. The daughter replied that she was very glad he had done so ; that the money would accumulate faster because of the better rate of interest which would be thus secured. This was the entire conversation, and the witness is not shown to have taken any part in it what•ever. She afterwards testified that her daughter subsequently told her that she had received the bonds, but no objection was interposed to this evidence, nor to the subsequent statement that her daughter said she had received the proceeds of the bonds and sent them to California to be invested.

The opinion of the learned judge at special term makes it very clear that no incompetent evidence was received and considered. He there states that it was only the testimony of the mother as to the conversation between the father and the daughter, in which the witness took no part, which he considers competent, aud that the question was reserved as to the declarations made by the daughter directly to the witness, and that lie had come to the conclusion that the witness was not competent to testify to these declarations, and that they must be stricken out. It is manifest that the testimony actually received and considered was unobjectionable, and that no sufficient grounds for reversal have been shown.

The judgment must be affirmed, with costs.

All concur.  