
    James E. Baxter and Others, Respondents, v. Mathias Baxter, Appellant, Impleaded with Others.
    
      Conversations with a deceased person—when one defendant may testify to them in behalf of a co-defendant — surrogate's decree refusing to probate co will—competency of, as evidence of incompetency.
    
    An action was brought by certain of the heirs at law of a deceased person to set aside as fraudulent, and upon the ground of the deceased grantor’s incompetence, a deed executed by the deceased to one of the defendants, in which action certain other of the heirs at law were made parties defendant for the reason that they refused to join as plaintiffs. The defendant, the alleged fraudulent grantee, called one of such heirs, a co-defendant, to testify to statements made by the deceased in conversations had with the witness.
    
      Held, that the testimony was not incompetent under section 829 of the Code of Civil Procedure;
    That the fact that the defendant heir, so called as a witness, had himself received' from the testator a deed, of another piece of land, executed upon the same day ns the one sought to be set aside, did not' disqualify him to testify to such statements. ■
    
      Qucere, -whether the decree of a surrogate, refusing to admit a "will to probate upon tlie ground that the testator "was mentally incompetent, is proper evidence in an action to set aside a deed executed by the testator upon the same day as the will, upon the question as to whether the grantor was mentally competent at the time of the execution of the deed.
    Appeal by the defendant, Mathias Baxter, from a judgment of the Supreme Court in favor of. the plaintiffs, entered in the office of the clerk of the county of Schoharie on the 15tli day of July, 1895, upon the decision of the court rendered after a trial at the Schoharie Circuit, the court having submitted certain questions to the jury.
    
      J. W. Barnum, for the appellant.
    
      G. M. Palmar, for the respondents.
   Putnam, J.:

This action was brought by the plaintiffs as heirs at law of one J ohn Baxter, deceased, to set aside a deed of a farm in Schoharie county, N. Y., executed by said deceased to the defendant Mathias Baxter on the grounds, as alleged in the, complaint, of a want of consideration, fraud and undue influence, and the mental-incompetence of the grantor. One Benjamin Baxter and other heirs of the said. John Baxter were made defendants, because, as set out in the complaint^ they refused to join as plaintiffs. The defendant Mathias Baxter only answered, and besides denying the allegations of the complaint as to want of consideration, fraud and undue influence, and the mental incompetence of the grantor, he set up that, under an ■ oral contract made betweén the said deceased and himself, lie was the equitable owner of the farm in question at the- time the deed sought to he set aside was executed.

The plaintiffs had judgment for the relief demanded in the complaint.

On the trial the defendant Mathias Baxter called his co-defendant, Benjamin Baxter, as a witness and offered to prove by him certain statements made by the grantor, in conversations between said Benjamin and the deceased, occurring about the time of the delivery of the deed in question, which, if proved, would have had a material bearing on the questions involved in the action. On the objection of the plaintiffs the evidence thus offered was excluded as incompetent under the provisions of section 829 of the Code of Civil Procedure.

We think that in thus holding, the trial court erred. Section 829 (supra) provides that “ Upon the trial of an action * * * a party or person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against * "x" * a person deriving his title or interest from, through or under a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person.”

Benjamin Baxter was not examined by his co-defendant, Mathias Baxter, “ in his own behalf or interest.” Although he was made a party defendant, he was' so made because he declined to join as a plaintiff. -His real legal interest in the action was with the plaintiffs. If they succeeded he would become entitled to a portion of the farm conveyed to his brother, Mathias Baxter, by the deed in question. In Albany Co. Savings Bank v. McCarty (149 N. Y. 71-84) it was held that “ a witness whose interest in the result is adverse to that of the party calling him does not testify in his own behalf or interest. (Carpenter v. Soule, 88 N. Y. 251-257.)

“An interest in the question is not.enough to disqualify, as that is not an interest in the event. Unless the witness will gain or lose by the event, either directly, as in money, or indirectly, because the record could be used as evidence for or against him, he is not disqualified. (Eisenlord v. Clum, 126 N. Y. 552, 556.)”

It may be that Benjamin Baxter, claiming title to another farm through a deed from John Baxter, deceased, executed on the same day as the deed to his brother Mathias, had an interest in the question involved, but he had no interest in the event of the action unless one adverse to that of his co-defendant. In any subsequent action brought by the plaintiffs, or other heirs at law of the deceased, against him (Benjamin) to set aside the deed executed by J olm Baxter to him, the record in this case could not be used for or against him. The subject of such an action would not be the same as this. Xo personal claim was made against Benjamin in the complaint. He had not answered. Although a defendant on the record, because his consent to join as a plaintiff could 'not be obtained, his interest was the same as that of the plaintiffs.

Under the authority above stated (and see, also, Hobart v. Hobart et al., 62 N. Y. 80), it must be held that Benjamin Baxter had no interest in the event of the action unless adverse to the defendant Mathias. Hence, he was not called to testify in his own behalf or interest. For this error of the court below we conclude that a new trial must be granted.

It is also urged that an error was committed on the trial in overruling the objections of the appellant' to the receipt in evidence of the decree of the surrogate refusing to admit to probate the will of John Baxter, deceased, executed on the same day as the deed in question, and in receiving said decree.in. evidence on the question of the mental capacity of the testator.

This case has been twice tried. On the first trial the trial judge admitted the decree of the surrogate refusing to admit the will of John Baxter, deceased, to probate, holding that it was conclusive evidence that on the day it was executed the testator was incompetent to execute- a conveyance of real estate. On appeal, the late General Term held (76 Hun, 98) that the trial court erred in holding that the decree of the surrogate was conclusive evidence against the appellant. That was all that was in fact decided by the General Term, although the judge who wrote in the case expressed an opinion that the decree of the surrogate might have been read as, prima facie. evidence of the mental incompetence of the testator on the day it-was executed. The question as to whether the view thus expressed can be sustained is not free from doubt since the decision of the Court of Appeals in Corley v. McElmeel (149 N. Y. 228). Having reached the conclusion that there should be a new trial on the ground of the exclusion of the statements of the.deceased to Benjamin Baxter, above referred to, we do not deem it necessary to pass upon this question.

For the reasons first above stated, the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed and a new trial granted, costs to abide the event.  