
    Hanford M. Swan, App’lt, v. George W. Morgan et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    1. Witness — Section 829 of the Code.
    In an action by the judgment creditor of a decedent against the grantee and the administrator of such decedent to set aside a deed made by decedent, as in fraud of creditors, such administrator may testify in favor of the grantee as to statements of the decedent concerning her indebtedness to the grantee, in consideration of which the deed was alleged to have been made.
    Appeal from a judgment dismissing the complaint
    
      James L. Baker,.for app’lt; C. H. Evarts, for def’t.
   Merwin, J.

— On the 3d day of August, 1890, Mary L. Morgan died intestate, and on December 30, 1890, the defendant George W. Morgan, her husband, was duly appointed administrator of her ■estate. In July, 1889, she became indebted to plaintiff, and on the 21st December, 1891, the plaintiff recovered a judgment on such indebtedness against George W. Morgan, as administrator. This action was commenced in May, 1892, against George W. Morgan, individually and as administrator, and against Jennie G. Morgan. Its object is to set aside, as fraudulent and void as to creditors, a conveyance of certain real estate from Mary L. Morgan to the defendant Jennie 0. Morgan, dated November 19, 1889, and recorded June 28, 1890, and also a bill of sale or assignment dated June 24, 1889, from Mary L. Morgan to said tJennie, purporting to cover all the personal property of the said Mary. It was alleged that these transfers were without consideration, and were made with the intent to defraud the plaintiff out of his debt. It was found by the special term that these transfers were made to secure to the defendant Jennie “ the payment of a sum which exceeded the value of the interest of Mary L. Morgan in both the real and personal property mentioned, for money which had been delivered to Mary L. Morgan by her mother for her daughter, the defendant Jennie 0. Morgan, and which justly belonged to her; ” and that they were not, either of them, made with an intent to hinder, delay, cheat, or defraud the plaintiff or any of the creditors of Mary L. Morgan. These findings are challenged by the appellant, and the main question in the case is whether the evidence is sufficient to sustain them. It appears that, before the trial, the real property had been sold upon foreclosure of prior mortgages, and did not bring enough to pay the mortgages. The bill of sale or assignment covered a quantity of book accounts and some chattels. There was evidence that the accounts were uncollectible, and that the interest of the decedent in the chattels was of about the value of $100. There was evidence tending to show that the decedent owed her daughter several hundred dollars.

A careful examination of the evidence leads us to the conclusion that it is sufficient to sustain the findings complained of. They rest largely on the testimony of George W. Morgan, and his credibility was a matter that the trial court had better opportunity to determine than the appellate court can by simply reading the evidence. It is claimed by the appellant that George W. Morgan was improperly allowed to testify as to statements of the decedent. The objection was a general one, “ as to any conversation or any statement that this witness gives'from the witness’ wife, deceased, as to any amount of money, as hearsay, and under section 829, Code Civ. Proc.” The defendant Jennie had a right to have the benefit of her father’s evidence. She did not hold from him, and lie was not testifying in his own behalf or interest. His legal rights, if any, in the property were the other way. An exception td the rule rejecting hearsay evidence is allowed in the case of declarations and entries made by persons since deceased, and against the interest of the persons making them at the time when they were made. 1 Greenl. Ev. § 147. Within this rule the statements of the decedent against her interest, long before this controversy or the debt of plaintiff existed, and at or near the time when she received the money, that she held it for her daughter and was indebted to her daughter therefor, were competent. If so, the ruling was not erroneous. In Bump on Fraudulent Conveyances (2d ed., 576) it is said that “ declarations of the debtor prior to the alleged inception of the fraud are admissible in favor of the grantee,” on the question of consideration; citing Dwight v. Brown, 9 Conn. 83; Banking Co. v. Stearns, 23 N. J. Eq. 414. We are of the opinion that the objection to the evidence was properly overruled.

The plaintiff in his complaint alleged that the decedent at the time of her death was the owner of a small piece of land of the value of about $50 adjacent to the other real estate, and that the defendants had the deed thereof, but the same was not on record. The plaintiff claimed the right to reach this property in this action. It was shown that before the death of Mrs. Morgan a deed was-executed of such a piece of property running to her, but it was also shown, and found by the court, that Mrs. Morgan refused to accept the deed, and so it was properly held that she acquired no title under the deed. Besides, if she did have the title, the plaintiff had a remedy by proceedings in the surrogate’s court. The foregoing considerations Jead to an affirmance.

Judgment affirmed, with costs.  