
    REUBEN H. ANDREWS vs. JOHN R. HUNT, Trustee, and REGINALD FENDALL, Administrator of Gilbert M. Wight.
    1. The provision of Section 858, R. S. U. S., excluding parties in a suit by or against personal representatives from testifying as to any transaction with or statement by the. testator or intestate, does not inhibit a party from testifying that an alleged transaction never took place between him and the intestate. The application of the statute is to be strictly limited to the cases covered by the proviso.
    2. Nor does the statute apply to transactions with the agents of the deceased.
    3. Where, in a suit against an administrator to cause him to deliver up certain notes found by him among his intestate’s effects and apparently the property of the intestate, but which, in fact, had been left with the latter by the plaintiff for safe-keeping over five years previous to his death and been overlooked, it was adjudged that as the laches of the plaintiff and his lack of business method had caused the suit he should be decreed to pay the costs although upon the main question he was entitled to prevail.
    In Equity.
    No. 11,511.
    Decided June 26, 1889.
    Justices Hagner, James and Montgomery sitting.
    Appeal by defendants from a decree of the special term on a bill filed to procure the release of a deed of trust and the surrender of the notes secured thereby.
    STATEMENT OE THE CASE.
    The bill alleged that in the year 1878 Andrews executed and acknowledged a deed to the defendant, Hunt, as trustee, conveying a lot in Washington City, purporting to secure the payment of four promissory notes, each for $1,000, payable to Gilbert M. Wight, at twelve, eighteen, twenty-four and thirty months after date, respectively; that these notes were not made because of any indebtedness on his part to Wight; that they were never delivered to Wight and never became his property, nor was the deed of trust ever delivered to the grantee, Hunt; that it was never understood between the complainant and Wight that the notes and deed of trust should be delivered to him or should become his property; that the botes were made with the view of their negotiation when the plaintiff might desire and should be able to secure a loan thereon; that the eighteen months’ note was afterwards discounted and negotiated by the plaintiff, the said Wight indorsing the same, and the proceeds thereof were paid to the complainant who lent $500 of the amount to Wight, and took his receipt therefor. ,
    That the complainant was then and now is a clerk in the United States Treasury, and afterwards paid that note by orders.on his salary, and he files with his .bill the note and Wight’s receipt for the $500; that the deed of trust and the three notes were inclosed by the complainant in an envelope marked with his name, and were handed to Mr. Donn, Wight’s clerk, to be kept in his safe as the complainant’s property; that Wight lived a number of years after the deposit of the papers with his clerk, and never used or claimed the notes or made any claim against the complainant in respect thereof, and never caused the deed of trust to be recorded; that after the death of Wight the defendant, Fendall, his administrator, found the papers in his safe and placed the deed on record, and now holds the notes and declines to surrender them or release the deed, and Hunt, the grantee, also declines to execute such release without the authority of Fendall.
    The complainant alleges that the recorded deed creates an apparent lien on the land thereby conveyed, casts a. cloud on his title and interferes with his disposition of the same; and he prays that Hunt may be decreed to execute a release of the deed, and Fendall, the administrator, may be directed to deliver up the three notes; and for further relief.
    Fendall, in his answer states that Wight died in 1884, and he was appointed his administrator; that he found the three notes and the deed among the papers of his intestate, in his private safe, together with a-duplicate of the eighteen month’s note ; and being without any notice or information that the notes did not belong to Wight’s estate, he placed the deed on record, supposing it had been left unrecorded by mistake. That he .knew there had been numerous pecuniary transactions between Wight and the complainant; that at the date of the notes and deed of trust, he finds from the books of the deceased the complainant made large purchases of merchandise from Wight, who was a furniture dealer; that he wrote to the complainant, after recording the deed, and demanded payment.of the note, and was informed by him that the note had been settled by dealings between him and Wight. That he has made efforts to ascertain the true state of the accounts between the complainant and the estate but without success, but he is led to the belief that the complainant is indebted to the estate in a considerable amount of money, although he has no personal knowledge of the matter; and he denies that the complainant is entitled to the relief claimed.
    The trustee in his answer disclaims all knowledge of the allegations of the bill, and submits his rights to the court.
    The justice holding the Equity Court decreed that the trustee should execute the release as prayed in the bill, and that Fendall, the administrator, should deliver up the notes to' be cancelled, and should pay the costs of the suit de bonis testatoris.
    
    From this decree the administrator appealed to this court.
    Messrs. W. E. Edmonston and S. T. Thomas for complainant:
    The handing of the deed of trust and no.tes in question to Donn, to be placed in Wight’s safe until the complainant should call for them, was not a “transaction” with Wight. At most it could only be said to have been a “transaction” with Donn as Wight’s agent.
    In this view of the case it was perfectly proper for Andrews to testify.
    
      In New York, under a similar evidence act, it has been repeatedly held that the prohibition that neither party to a suit by or against executors and administrators shall be allowed to testify against the other as to any transaction with, or statement by, the testator or intestate, does not extend to “transactions” with the agent of the deceased person, or with the deceased, agent of the adverse party. Pratt vs. Elkins, 80 N. Y., 198; Platner vs. Platner, 78 Id., 90; Kerr vs. McGuire, 28 Id., 446; Wadsworth, admr., vs. Heermans, 85 Id., 639; (S. C. sub. nom. Hill vs. Heermans, 22 Hun., 455); see generally 1 Whart. on Ev., Sec. 469.
    The Supreme Court has carefully restricted Section 858, Revised Statutes, to cases where judgment may be rendered for or against an administrator, executor or guardian. Potter vs. National Bank, 102 U. S., 164. See, also, the recent case of Droop vs. Metzerott in this court. Ante, 89.
    Messrs. Edwards & Barnard for the defendants.
   Mr. Justice Hagner,

after making the foregoing statement of the case, delivered the opinion of the Court:

The proof discloses' a very remarkable state of facts. Wight lived five years and five months after the execution of the deed of trust; and yet there is nothing to show that he ever claimed any ownership over the notes or the deed, or demanded payment of the sum apparently due; notwithstanding that during this time he was considerably embarrassed in his affairs, and was a frequent borrower of money, among others from Andrews; from a cook at a hotel, and from Government clerks and ladies. The only evidence of his ownership of the notes is that afforded by their recital, and by his possession of the papers. '

Several witnesses were examined in behalf of the complainant, among others Andrews himself. Before considering the testimony, it is proper to dispose of a preliminary objection to the evidence of the complainant.

It is insisted upon the part of Fendall that Andrews is not a competent witness under Section 858 of the Revised Statutes of the United States, which declares: “In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action, because he is a party to or interested in the issue tried: Provided, that in actions by or against executors, administrators or guardians, in which judgment may be rendered against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party or required to testify by the court.”

Does the testimony of Andrews come within this inhibition?

Under this section the disqualification of the witness is limited to testimony against the other party “ as to any transaction with or statement by' the testator, or intestate,” etc.

But so far as the statement of Andrews can be said to refer in any way' to transactions with Wight, it is confined to a denial that any such transaction between them, ever took place. He testified that he never delivered the papers to Wight, but stated nothing whatever as to any conversation with the deceased on the subject of the deed and notes.

The New York Code of Civil Procedure, Sec. 829 (which goes much further than our statute), prohibits the'survivor from testifying that any particular communication or transaction did or did not take place between him and the deceased. Rapalje, on the Law' of Witnesses, page 213, says: “So long as the survivor refrains from testifying as to anything that passed or did not pass personally between himself and the deceased it is no valid objection to his testimony that the facts which he states bear upon the issue whether or not the personal transaction in question took place, or upon the truth of the testimony by which such transaction is sought to be proved against him.”

This was the ruling in Wadsworth vs. Heermans, 85 N. Y., 639, which was an action of replevin brought by Hill, the plaintiff’s intestate, to recover negotiable bonds which he'claimed to have deposited with (Fellows) the deceased, for safekeeping merely, but which were found in the deceased’s safe with his name inserted in the blanks, and were claimed by the defendant as assignee of the deceased. Hill was asked whether Fellows’ name was on the bonds when he (Hill) put them in the safe. This question was objected to as involving a personal transaction with the deceased, but the Court of Appeals affirmed the decision of the trial court overruling the objection, on the ground that the question involved no personal transaction, but merely respected the condition of the bonds at a particular time.

So in Pinney vs. Orth, 88 N. Y., 447, under the same statute, it was held that a party was not precluded from testifying to extraneous facts which tended to show that a witness who had testified to a conversation between that party and the deceased, must have testified falsely because the witness was not present at the interview described.

It is well settled that the New York statute prohibiting a party to a suit by or against executors or administrators from testifying against the other, or to transactions with the deceased, does not extend to transactions with the agents of the deceased. Pratt vs. Elkins, 80 N. Y., 198. The statement of Andrews, therefore, as to his interview with Donn, when the papers were deposited in Wight’s safe, would clearly have been admitted, in that State; and the United States statute is not more stringent than that of New York in this particular. The Supreme Court in the. recent case of Goodman vs. Fox, 129 U. S., 631, limited the application of the statute with strictness to cases covered by the proviso; and such have been the rulings of this court.

For these reasons, we think, the evidence of Andrews was properly admissible.

The testimony of the witnesses on both sides is substantially as follows :

'■ Andrews, the complainant, testified in his own behalf that he has been a clerk in the United States Treasury Department continuously since March, 1864; that he first became acquainted with Wight in 1866; that he bought some furniture from him in 1874; that Wight accommodated him in the matter of the furniture and' let him pay for it as he could; that the four notes were originally secured by a chattel deed of trust, bearing the same date as the notes, on the furniture in his house; that the furniture covered by the chattel trust was afterward sold at auction, but not under the power contained in the deed, and the proceeds turned over by the auctioneer to Wight, who gave all except about $100 to him (Andrews); that thereupon, in order to make the security good as to the eighteen months’ note, which he had negotiated with one Hobbs in April, 1877, he (Andrews), took the remaining three notes and a duplicate of the one transferred to Hobbs to the office of Mr. Carusi, who had prepared the chattel trust, and requested that gentleman to prepare a deed of trust upon his (Andrews) real estate securing the same notes; that as soon as Carusi had prepared the deed of trust upon the realty he signed and acknowledged the same and took it and the notes away with him and went across the street to Wight’s place of business, intending to put them in Wight’s safe; that he called the attention of Donn, Wight’s clerk and salesman, to the papers, telling him he wanted him to particularly notice them because they were his private papers, so that in case of Wight’s death they could be returned to him; that thereupon he (Andrews) placed the papers in an envelope, sealed it, wrote his name upon it, and handed the package to Donn to put in the safe.

Mr. Donn, called for the complainant, testified that he was in Wight’s employ for twenty-seven years. He recollected the circumstance of Andrews asking him to put some papers in Wight’s safe; he saw the papers, recollects that Andrews put them in an envelope, sealed it, and wrote his name upon it, and that he (Donn) put them in the safe. He was very busy with a customer when Andrews called, and does not recollect whether he made any explanation about the papers, but does remember Andrews saying he had just come from Mr. Carusi’s office. Wight had told the witness that Andrews was- at liberty to use the safe for .the deposit of his papers whenever he chose to do so.

The complainant further testified that a short time after Mr. Fendall was appointed administrator of Wight’s estate he received a circular letter from him, stating he was indebted to Wight’s estate in about $2,500, but not mentioning the notes in question, and. inviting him to call and see -about the matter; that as a result of this letter he called at Mr. Fendall’s office, but did not see him, but did see Mr. Coughlan, his associate; that he had several interviews with Coughlan concerning the matter; that about the third interview, when the deed of trust and notes in question were produced by Coughlan, he at once claimed them as his property, and told Coughlan the circumstances under which they were put in Wight’s safe, but Coughlan said he could not give them up and that he (Andrews) would have to see Mr. Fendall about the matter.

Mr. Fendall, the administrator, testified, on his own offer, that he had a conversation with Andrews in which the latter claimed the notes had been settled by other dealings between himself and Wight; but not being able to come to that conclusion he turned the whole matter over to Coughlan, his associate.

Coughlan, called for the administrator, stated that he did not remember whether Andrews saw Fendall or not, but does recollect that when he showed Andrews the deed of trust' and notes in question, the latter claimed them as his property, and made substantially the same statement about placing them in Wight’s safe that he he gave in his testimony in this cause.

Upon the whole testimony we entertain no doubt the decree below should be affirmed. Apart from the direct testimony, the circumstances surrounding this transaction strongly support the contention of the complainant. Wight died in straightened circumstances, and his estate was absolutely insolvent. During all the intervening five years these papers were in his safe. It is difficult to understand why he did not use them if he had the right to do so. He certainly needed $4,000 very badly. But so far from claiming the right to use all the notes, out of the proceeds of the note that was discounted he borrowed $500 from Andrews, which he testifies he loaned Wight only out of good fellowship. After this, the three other notes, amounting to $3,000, remained in his possession unused, although there was no reason he should not have applied them to relieve his needs, if he had the right to do so. We think this conduct on his part was utterly irreconcilable with the idea that he was the owner of the notes.

The decree required the administrator to pay the costs de bonis testatoris. We see no reason why this should be so. Andrews certainly was guilty of laches iii leaving his affairs in such confusion, and it was his own lack of business method that caused the expenses of this suit; and we adjudge that he should pay the costs. With that exception the decree below is affirmed.  