
    Lafayette L. Burdick, Respondent, v. Mary E. Burdick, Appellant, Impleaded with Laura V. Stickley.
    
      Action to set aside a deed as proewed by fraud—proof that after its execution the grantor, since deceased, made a lease of the premises in the presence of the grantee — the grantee may testify to her reasons for allowing such lease to be made.
    
    In an action brought to set aside a deed executed by a person since deceased,, upon the ground that it was procured by fraud and undue influence, it appeared that eight months after the execution of the deed the grantor executed a lease of the premises in the presence of the grantee.
    
      
      JZeld, that section 839 of the Code of Civil Procedure did not render the grantee incompetent to testify to her reasons foyallowing the deceased grantor to make the lease, certainly in so far as such reasons were wholly disassociated from actual personal transaction with the grantor.
    Appeal by the defendant, Mary E.. Burdick, from a judgment of "the Supreme Court in favor of the plaintiff, entered in the office of "the clerk of the county of Kings on the 20th day of March, 1902, upon the decision of the court rendered after a trial at the Kings 'County Special Term.
    
      Andrew F. Van Thun, Jr., for the appellant.
    
      Leonard J. Reynolds, for the respondent.
   Hirschberg, J. :

The plaintiff has procured a judgment voiding a deed of real -estate, made by Winslow M. Burdick to the defendant Mary E. Burdick on the ground that it was procured by fraud and undue influence. The: decision of the learned trial justice was announced -at the close of the evidence, and appears to have been greatly influenced, if not controlled, by the fact that eight months after the -execution of the deed the grantor executed a lease of the premises in. the presence of the grantee. ' The court said in substance.that the .grantee should have known that it was her duty to execute the lease, ¿and that her act in permitting it to be' executed by the grantor1 was in consonance with the plaintiff’s claim that the grantor was under ¿the impression that he still had control of the property. When the lease was offered in evidence it was received and properly received, notwithstanding the objection that it was subsequent to the deed, ¿the court saying: That is one of the features that, makes it very material in this case. Tour client was present when it was exe-cuted. The question arises, why did she "allow Mr. Burdick to make .-a lease of the premises.if she had owned those premises for eight months ? ”

The grantee was afterwards called as a witness in her own behalf. The grantor had died before the commencement of the action, and ¿the following colloquy was held between the court and counsel in ■ ¿reference to her competency to testify : “ The Court: The witness is incompetent to testify to any transaction with the deceased. Mr. Van Thun: This lease' has been offered in evidence. The Court: Does that make her any more competent ? Mr. Van Thun: I think it makes her competent to explain it. The Court: I am compelled to disagree with you. She cannot testify to any conversation or transaction with the deceased. Mr. Van Thun : To explain the making of this lease and— The Court: You have my ruling and you have an exception. It is a direct violation of the provisions of law.” I think this was intended to be understood, and was understood, as a ruling to the effect-that the witness was incompetent to testify to anything tending to explain why she permitted the deceased to execute the lease without interference or .protest, and was broad enough to exclude any motive or intent which did not involve direct proof of conversations or transactions with him. The arguments of counsel indicate that it was so understood by both parties to the controversy. To this extent the ruling was clearly erroneous. The basis of the action is the alleged fraudulent purpose of the grantee in procuring the deed, to a belief in which purpose the circumstance under consideration furnished manifest plausibility, and notwithstanding the decease of the grantor she was entitled to testify to her reasons for allowing him to make the lease, certainly in so far as they may have been wholly dissociated from any actual personal transaction. In view of the importance properly attached by the trial court to the acquiescence of the grantee in the action of the grantor in leasing the property as though he was still the owner, it cannot be said that the exclusion of such explanation as she might lawfully have given without expressly or directly violating the provisions of section 829 of the Code of Civil Procedure has not- prejudicially affected the result, and á new trial is, therefore, necessary. The judgment should be reversed.

Goodrich, P. J., Bartlett, Jenks and Hooker, JJ„ concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  