
    Margaret H. Jones, Individually and as Executrix, etc., of Lydia J. Howell, Deceased, Respondent, v. Elizabeth H. Thomas and Others, Defendants, Impleaded with Mary H. Bullock and Others, Appellants.
    
      Conversation with a decedent — it may be testified to by one of several claimants in, severalty in favor of the other claimants, but not of himself
    
    Where a controversy arises as to whether a deceased life beneficiary had ever received a certain fund, in which "event five persons Would be entitled to definite portions of the fund in severalty, and the executors of such decedent bring an action, against such five claimants to determine, the controversy, one of the • claimants is not incompetent, under section 829 of the Code of Civil Procedure, to testify on behalf of the other claimants to declarations made by the decedent in her lifetime to the effect that the fund in controversy had come into her possession, hut such declaration cannot he given effect as to the claimant testifying thereto.
    McLennan, J., dissented.
    Appeal "by the defendants, Mary H. Bullock and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of-the clerk of the county of "Oneida on the 12th day of May, 1902, upon the report of a referee.
    The action as originally commenced was brought by Margaret H. Jones and Griffith Owen, individually and as executors of the last will and testament of Lydia J. Howell, deceased. Griffith Owen having died during the pendency of the action, it was continued in the name of the surviving plaintiff.
    
      Richard R. Martin, Charles G. Irish and George E. Spring, for the appellants.
    
      William E. Secrney., for the respondent.
   Williams, J.:

The interlocutory judgment should be reversed and a new trial ordered, with costs to appellants to abide event.

The only question involved on the appeal is the question of admissibility of evidence under section 829 of the Code of Civil Procedure.

The action was brought to determine conflicting claims to a particular fund in the custody of the personal representatives of the estate of Lydia J. Howell, deceased.

. Simon John died August 7,1847, leaving a will in which he gave and bequeathed all his real and personal property to his wife, Maria John, during her natural life, to be-at her disposal after his decease, and, after her decease, to his daughter, Lydia J. Howell, during her natural life, and then to his grandchildren, the sons and daughters of Mary Hughs, deceased, and to the children of his daughter, Lydia J. Howell, if any, to be divided among them, and appointing his wife, Maria John, sole executrix of the will.

The will was, September 6, 1847, admitted to probate and the executrix qualified and entered upon the discharge of her duties as such. January 25, 1848, said executrix filed an inventory showing personal property in her hands amounting to' $5,214.10, and May 16, 1849, a decree was entered upon such accounting, which showed that, after payment of debts and expenses of administration, there remained in her hands a balance of $2,982.98, belonging to the estate. Maria .John was entitled to the use of this fund during her life, at least, and in the language of the will it was at her disposal after his decease. She died intestate July 13, 1853, and December 10, 1853, Mr. Hughs, brother-in-law of Mary Hughs, and Mr, Howell, husband of Lydia J. Howell, were appointed "administrators of the estate of Maria John, and qualified and entered upon the discharge of their duties as such.

December. 27, 1853, such administrators filed an inventory of the personal property left by Maria. John, which showed among other things that the fund $2,982.98, belonging to the estate of Simon John, was in their custody, and in addition thereto further personal property amounting to $2,598.66. January 31, 1854, such administrators filed their account with reference to the latter fund, and the net amount thereof, after payment of expenses, was paid over to and receipted for by the descendants of Maria John, Lydia J. Howell one-half, and the seven children of Mary Hughs the other half. No accounting seems to have been made as to the fund belonging to the estate of Simon John, $2,982.98.

' At the time of the trial of this case, said administrators' Were both dead, and Lydia J. Howell had also died March 14, 1899, forty-five years after the death of Maria Johns, leaving no husband Or descendants surviving her, but leaving a will which was admitted' to probate April 21, 1899, appointing the original plaintiffs herein executors; they qualified and entered upon the discharge of their duties as such executors. The fund of $2,982.98 was the subject-matter of this action. The descendants of the children of Mary Hughs were entitled to it, if it could be found. They claimed the fund was paid over by the administrators of Maria John’s estate to Lydia J. Howell; that she had the use of it during her lifetime, as she was entitled to under the will of Simon John, and that the fund was in her hands at the time of her death, and came into the hands of her executors, the' original plaintiffs herein, after her death. The original plaintiffs received personal property of the estate, in amount greater than the fund, but had no. knowledge as to whether’ this fund was a portion of such personal estate, or whether Lydia J. Howell ever received such fund from the administrators of Maria John’s estate. This action was, therefore, brought to determine the question in controversy, which was in brief whether Lydia' J. Howell received the fund from the administrators of Maria John’s estate. The defendants claimed the fund was in the plaintiff’s hands, and that they were entitled to shares thereof as follows: Phoebe M. Perkins, Mary H. Bullock and John B. .Bullock, each one quarter, and Mary H. Nichols and William Nichols, each one-eighth.

Upon the trial, Mary H. Bullock, a claimant of one-quarter of the fund, was sworn as a witness and testified that she called upon Lydia J. Howell about'the 5th of February, 1895, and had a conversation with her. She was then asked to state that conversation, the offer being made to show that Lydia J. Howell made statements that certain personal property from her father, Simon John, carne into her possession, and the. .evidence being offered in behalf of the answering defendants other than herself, and not in behalf of the witness. The plaintiffs objected to the evidence on the ground that the witness was a party to the action, and that personal conversations between her and Lydia J. Howell were incompetent under section 829 of the Code of Civil Procedure, and generally as incompetent and immaterial. The objections were sustained, with exception.

Later in the trial, Phoebe M. Perkins, another claimant of one-quarter of the fund, was sworn as a witness, and testified that she. spent two weeks with Lydia J. Howell at her home in the winter of 1878. She was then asked if Lydia J. Howell during that visit said anything concerning the property of Simon John, and if so to state that conversation, the offer being made to show that Lydia J. Howell made statements touching personal property of Simon John in her possession, and the evidence being offered solely as touching the rights of defendants other than the witness, and not in behalf of the witness in any way.

This evidence was objected to as incompetent and immaterial and calling for a conversation with a deceased person contrary to section 829 of the Code of Civil Procedure. The objections were sustained, with exception. The object of the evidence of these two witnesses was to show that déceased had received this fund during-, her lifetime and had it when she died.. There was no other, evidence on the subject obtainable in the case, and this being excluded,, the referee found that the fund remained in the hands, of the administrators of Maria John’s estate, and never came into the hands of . Lydia J. Howell. It is evident, therefore, that if this evidence was, improperly excluded, the judgment must be reversed and a. new trial granted. Section 829 of the Oode of Civil Procedure provides in brief, so far as applicable to this question, that a party to-, an action, or a person interested in the event thereof, shall not be-examined as a witness in his own behalf or interest, against the executor of a deceased person, concerning a personal transaction or-communication between the witness and such deceased perso.n.

, It is apparent that the only ground for excluding the evidence in question was that it would be given in the witness’ own behalf or interest. It could not be excluded, because the witnesses, were each, parties to, and interested in the event of the action, or. because it. was concerning personal, transactions and communications between the deceased and the witnesses. Nor could it be excluded because-, given against the executor unless it was also in the witness’ .own behalf or interest. It was expressly stated that it was not offered in the witness' own behalf or interest, but in the behalf and interest of all the other claimants who were parties to the action. This-being so, the evidence, when received, would have been considered only in behalf of the claimants other than the witness giving the evidence. It could not have been received for the benefit of the witness herself. The claims of the several parties to interests in the-fund were not joint but several, and, therefore, it could not be said that the effect of the evidence must necessarily be to establish the.witness’ claim as well as those of the other claimants. Each could, have brought an action at law against the estate of Lydia J. Howell to recover his or her part of the fund. It was not necessary that all-should unite in one action for the entire fund. If separate actions, had been so brought, each of these witnesses would have been competent in other actions than her own, and she would not then have-been a witness in her own behalf or interest. (Hobart v. Hobart, 62 N. Y. 80; Wallace v. Straus, 113 id. 238; Connelly v. O' Connor, 117 id. 91; Lyon v. Ricker, 141 id. 225 ; Smith, v, Meaghan, 28. Hun,, 423; Baxter v. Baxter, 13 App. Div. . 65 Rix v. Hunt, 16 id. 540 ; Meislahn v. Meislahn, 56 id. 566.)

. This being so, the plaintiff, as representative of the estate of Lydia J. Howell, could.not make them.incompetent to give the evidence offered by. uniting all. the. claimants in one action. The interests of the claimants in the fund being several and not joint, the claims of all the others besides the witness testifying could be established upon the witness’ evidence, and her claim be defeated (if only her own evidence was given) by reason of an entire failure of all evidence as to her claim. In other words, the judgment could be several as to each claimant, and need not be joint'as to all. Effect could, therefore, be given to the evidence of one of them, so. far as the claims of others were concerned, without giving effect to it as to the one testifying as a witness. (Ely v. Clute, 19 Hun, 35.) This was an action brought on a joint and several promissory note against the two makers thereof. The defense was usury. It was held that each defendant was a competent witness for the other to prove the usurious agreement made with the plaintiff’s testator, the payee of the note, that separate judgments might be rendered against the two makers, and as the evidence of each defendant was used solely in behalf of his co-defendant, and not in his own behalf or interest, it was competent that suing the makers together did not affect the right of either to any relief which he would have been entitled to if sued separately.

Talcott, P. J., in his opinion, said, in order to be incompetent to testify concerning a personal transaction against the executor, etc., of a deceased person, in regard to a personal transaction or com.munication between the witness and. the deceased, he must be called to testify, or this testimony must enure to the benefit of his own behalf or'interest. In the case at bar the testimony of either witness could not enure to his own interest or behalf, as he was expressly offered only in behalf of the other defendant. For example, if Thomas W. Clute had been examined as offered, and his testimony had established the usury in behalf of Joseph B. Clute, and there-had been no competent witness who could prove the facts in behalf and interest of Thomas W. Clute, the plaintiff, notwithstanding-the testimony of Thomas W. Clute would have been entitled to a verdict against.him; for his. evidence was not offered, nor was it receivable, in his.own behalf or interest.” Hardin, and- Smith, JJ., concurred in this decision. " The same law was recognized by the same court in Hill V. Alvord (19 Hun, 77),. the opinion being by Hardin, J., concurred in by. Talcott, P.J. and Smith. J.

• Upon principle and authority, the evidence of the two witnesses in question was improperly excluded, and the interlocutory judgment-should, therefore, be reverséd and. a new trial granted, with; costs to appellants-to. abide event.

Spring, Hiscock and Davy, JJ., concurred, McLennan, J., dissented.

■ Interlocutory judgment, reversed and new trial ordered, with costs - to the appellants to abide event.  