
    Norman Cole, as Executor, etc., of Elizabeth Thomas, Deceased, Appellant, v. Mary Sweet, Respondent.
    Third Department,
    March 13, 1906.
    Executors and administrators — action to recover gifts made by testatrix to servant — evidence — when evidence of transactions With decedent taken in other proceedings is given by executor, defendant may testify as to the complete transaction — waiver of section 829 of the Code of Civil Procedure — when domestic servant not in fiduciary relation—when gifts by decedent are shown to have been voluntary.
    When a residuary legatee in compelling the executor to account in the Surrogate’s Court has claimed that he has failed to recover certain moneys given by the testatrix during her life, to a servant, and .in that proceeding has called said servant as a witness and, examined her partially as to personal transactions with the decedent, and thereafter induces the executor to bring an action against the servant to recover said gifts on the ground that they were procured by fraud and undue influence, and in such action the executor introduces in evidence the statements of the servant made in the proceeding before the surrogate, there is a waiver of the provisions of section 829 of the Code of Civil Procedure, and the defendant is entitled to give evidence of the whole of any transaction about which she was partially examined,
    When it is shown that the relation of such defendant to the testatrix was that of a servant acting only under express directions, and that the testatrix was a woman of strong will, no fiduciary relation is shown which casts upon the servant the burden of showing that the gifts made to her were not procured by fraud or undue influence.
    When it is shown that the defendant served faithfully for fourteen years, and performed many offices in addition to thosé of a servant, and was, beloved by the testatrix, and that after the gifts had been made the testatrix executed a will giving to defendant a legacy pursuant to the original agreement, clearly indicating she intended the legacy to be in addition to the gifts," a finding that said gifts were voluntary is warranted by the evidence.
    Appeal by the plaintiff, Norman Cole, as executor, etc., of Elizabeth Thomas, deceased, from" a judgment of the Supreme Court in favor of the,defendant, entered in the office of the, clerk of the County of Warren on the 16th day of October, 1905, upon the decision of the court rendered after a trial before the court without a jury at the Warren Trial Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 11th day of October, 1905, denying the plaintiff’s motion to amend the decision of the court by striking out the provision for costs.,
    The testatrix, Elizabeth Thomas, entered into an agreement in 188.9 with the defendant Mary Sweet, who' before that time was earning $5 per week, whereby-the latter agreed to live with the former as a domestic servant and to perform the.duties, pertaining to such-occupation, and said Elizabeth Thomas agreed to,pay'for .sueh services $1 per week and to bequeath to the defendant in her will $1,.OO0 additional. Pursuant to such agreement defendant entered into the employment of said Elizabeth Thomas in 1889 and continued therein for nearly fourteen years and until the death of said Elizabeth Thomas. The plaintiff is the executor of the will of" said Elizabeth Thomas and has brought this action at the instigation of the residuary legatee thereunder claiming that during, the time defendant was in the employ of the said' testatrix the latter was weak in body and mind and that the defendant,, while . acting in a fiduciary capacity as the agent of the testatrix wrongfully and fraudulently influenced her to sign and.deliver to her without any adequate consideration, checks for considerable sums of money, which the defendant drew thereon and appropriated and. converted the same to her own-use and also influenced testatrix to leave- large-sums qf money in her hands which she also wrongfully converted to her own use, and it is sought in this action to procure an accounting of such transactions and to charge any amount found due to the plaintiff against the legacy for $1,000, given to the defendant by, the will of;the testatrix-and to recover a judgment against th'e defendant for the balance thereof. The testatrix died on -the 20th day of July, 1903.
    The defendant denied- in her answer that any fiduciary relations éver existed between her and the testatrix and denied all allegations of fraud and undue influence and conversion of' moneys. The court upon the trial dismissed the complaint, with costs against the plaintiff. From the judgment of dismissal and from the order denying the motion to strike out the provision as to costs the plaintiff has appealed.
    J. A. Kellogg and Erskine C. Rogers, for the appellant.
    
      A. Armstrong, for the respondent.
   Chester, J.:

Prior to the commencement of this action proceedings were taken by the residuary legatee before the surrogate- of Warren county to compel an accounting by the executor. In that proceeding the residuary legatee under the will of the testatrix, who is her son, filed objections to the account filed by the executor, and made the claim that the executor had failed to collect from Mary Sweet (the defendant) the moneys she had improperly ^obtained from the deceased; claimed that she was indebted to the estate therefor, and asked that such moneys be offset against the legacy to her. The defendant was called and sworn as a witness for the contestant in that proceeding and upon the examination of his counsel, who is the same counsel that represented the plaintiff on the, trial of this action, she was required'to testify concerning personal transactions she had with the deceased in regard to the very matters involved in this suit. The surrogate finally determined that he hitd no jurisdiction to pass upon the claim made by the residuary legatee upon the accounting.

The proceeding was then suspended and it was agreed that an action should be brought in the name of the executor against Mary Sweet to recover the same moneys that had been the subject of the accounting, and for such cause of action as the residuary legatee may deem proper, the residuary legatee to designate attorneys" and counsel in such action who shall have full charge of the prosecution thereof, and to save the executor harmless from any claim which may arise against him on account of the institution of such action. This action was commenced accordingly in the name of the executor as plaintiff.

Immediately upon the opening of the trial the plaintiff offered in evidence all the testimony which had been given by the defendant in the proceeding in the Surrogate’s Court, and under the defendant’s objection that such testimony was incompetent because the-. witness was in court and should be examined in the regular way, such testimony, which covers some twenty-three pages of the printed' record, was received and read as a part of the plaintiff’s case. After the plaintiff rested on the trial the defendant was sworn in her own behalf. Objections were then made by the plaintiff to all testimony on the defendant’s part involving personal transactions between her and the deceased, as being incompetent under section 829 of the Code of Civil Procedure. These objections were over-' ruled and the defendant was allowed to testify fully concerning such personal transactions With the deceased as had been made the subject of inquiry on her prior examination. The exceptions to these fillings; present the first question to be 'determined upon this appeal. '

The appellant’s counsel contends that the evidence of the defendant before the surrogate is to be regarded simply as' her'- admissions and that the, proving of such admissions on this trial gives the defendant ho right to explain or ,amplify the same as the shield of section 829 of the Code of Civil Procedure stands in the -way: It 'is true that, such evidence of the defendant was not elicited in- the first instance in this action' by the plaintiff. If it had been, no doubt'would exist as to her right to testify fully concerning' the same transactions mentioned in the evidence, notwithstanding the prohibitions of section 829.' .But it was elicited on the part of the residuary legatee, who is the real although not the nominal plaintiff in this action, and in a proceeding instituted by him for .substantially the same relief he is seeking in this action against the defendant, viz., .to recover from her for his benefit nioneys Which he claims sh¿ improperly received from the testatrix. In that' proceeding she was examined a-t great length concerning her personal relations and transactions with the deceased, and- concerning every transáction which was the subject of inquiry upon this trial. These covered the subject of gifts from the deceased to the defendant,, the method of drawing money from the bank upon checks and the making of deposits in banks. , , .

It seems to' me that the plaintiff, under the circumstances presented here, by reading the defendant’s testimony given in the Surrogate’s Court in evidénce as a part of his case on this trial, is in n,o different position than if he had called the defendant to the stand as his witness and elicited from her the same testimony which she had given in the Surrogate’s Court'. The evident, purpose in not calling her was to prevent her giving upon cross-examination the testimony now objected to by the plaintiff. It would have been .competent in the Surrogate’s Court, after she had been examined by the contestant there, to have given -upon cross-examination all the testimony which the plaintiff now seeks to exclude. That proceeding is still pending, and she coulcl yet, in the discretion of the surrogate, be permitted to further testify tliei'e and state the whole of transactions which she insists were only partially detailed there. If she had testified fully there it could not be successfully contended that a part only of her testimony could be extracted and used against her here. The plaintiff, by the course adopted in getting her testimony, has, it appears to me, clearly opened the door to the defendant to detail the whole of any transaction about which she had been partially examined, and should have been held to have waived' the right to invoke the aid of section 829 to prevent her from so doing. The court was, therefore, right in overruling the objections.

The plaintiff also^seeks to show that the parties stood in a confidential and fiduciary relation so as to cast the burden upon the defendant of showing by clear and convincing evidence that the gifts made by the deceased to the defendant were free from fraud and undue influence. But the learned trial court has found upon sufficient evidence that the defendant held no fiduciary relations toward the deceased except to deposit moneys when directed by her, collect interest when-directed, make purchases when directed, pay moneys from her purse or put moneys in her purse when directed and to do other things which an attendant would do when under the direction and supervision of an employer. The evidence is clear that whatever the defendant did, she did - pursuant to the explicit directions of the deceased with reference to the specific transaction. It was the relation of master and servant, with the servant faithfully obeying the orders which the master gave. There was no discretion at all left to the servant with respect to the manner in which these orders were to be obeyed, and while in a sense the relation was one involving some degree of confidence, it was not a fiduciary relation in the ord in ary, legal interpretation of that term. Nor is there any proof in this case of any undue influence by the defendant over the deceased, nor any evidence whatever of any fraud on the defendant’s part. The evidence, too, is that the deceased was a woman of strong will and kept a firm grasp upon all her business affairs, and that only upon two or three occasions when she was ill or had a fever did the deceased show any evidence of metal aberration.

The evidence, is to the effect that the defendant was faithful in every respect to the ■. deceased and performed not only the -duties that she . agreed to. perform as a domestic, but all kinds of other services and attentions, many of which would ordinarily be performed by a nurse or by workmen, or artisans; that the deceased felt under great obligations to the defendant, for her valuable, services and said she thought as much of her as if she had been her own ■ daughter. With this feeling she made gifts of money and' other property to. her from time to time while she. was in her employ, .which the. trial court has found, with the legacy and wages paid, were reasonable .and in just recognition and compensation for her services and -for the affection and care shown by her towards her misstress, and the evidence shows, and. the-court, has. found, that alksnch gifts,were freely and voluntarily made. The services covered a period of- nearly foprteen, years, and after these gifts had been made the.testatrix executed her-will,giving to the defendant a legacy of $1,000, the amount covered by the original agreement, which, clearly . indicated that she. intended, the legacy to be in addition to the gifts.

While, it is not easy to reconcile all of the. statements made by the • defendant, in her examination before the surrogate with some of her statements made upon this ‘trial, yet the relations between the defendant, .and the deceased .and the gifts made have ample support .in the testimony of the witnesses outside of the testimony of. the . 'defendant.

.The-.ease was properly disposed of at: the Trial Term, and no reason is..apparent why we should..interfere with the judgment dismissing the complaint or with the discretion .of / the trial 'justice in allowing costs to the defendant.

-The judgment , and. order .should be affirmed, with costs.

All concurred, except Smith, J., dissenting; Kellogg, J., not sitting.

. Judgment and order affirmed, with costs.  