
    Julia D. Hildick, App'lt, v. David T. Williams and Isaac M. Hunt, Resp’ts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed December 28, 1888.)
    
    1. Evidence — Code Crv. Pro., § 829 — What admissible under this section
    The defendants are executors of the will of Benjamin L. Guión, who died in March, 1887, leaving among his papers the six bonds of the Union Pacific Railroad Company of $1000 each, with the coupons attached, which are the subject of this suit. These bonds came into the hands of the defendants with other papers of the testator, but were no part of his estate and were not put in the inventory by the executors. The plaintiff demanded the delivery of the bonds to her, but the defendants declined to deliver them, alleging that they belonged to Eleanor Hildick, her daughter, whereupon the plaintiff commenced this suit against the defendants in their individual capacity. On the trial of the action the defendant Williams testified that in the envelope which contained the bonds he found a receipt to plaintiff for the same in the handwriting of Mr. Guión, and that he gave the receipt to plaintiff. Afterwards the plaintiff was called as a witness in her own behalf and testified as follows: Q. How did you get possession of that receipt? A. I had it in my possession, I think, about two years; then I gave it to Mr. Guión. Q. For what purpose? To which the defendants objected on the ground of calling for a personal transaction between the deceased and witness. (Code, § 829.) The objection was overruled and the answer was: “For safe keeping.” Held, that the action was properly brought against the defendants in their individual capacity as custodians purely The decedent’s estate had no interest m them. The test to be applied in this case is that the estate of Guión would in nowise be affected by the result.
    2. Same—Admissibility on an interested party where the other is DEAD.
    That the spirit and purpose of section 829 of the Code is equality, and there was no violation of the letter or the spirit of the statute in admitting’ the testimony objected to.
    3. Same—Right to interplead party claimants under section 820 of Code.
    That the defendants took upon themselves a contest between the plaintiff and her daughter as to the ownership of the bonds. When the action was commenced they could have relieved themselves from liability by applying for leave to interplead the daughter pursuant to section 820 of the Code. Having gone to trial, relying on the daughter’s title as their defense, they should not complain if the same testimony were held admissible against them as would be admitted against the daughter.
   Clement, Ch. J.

This action was brought to recover the possession of six bonds, issued by the Union Pacific Railroad Company, with the coupons, of the value of $7,290,. and a verdict was rendered by the jury for the plaintiff, which was afterwards set aside by the learned trial judge, and, from the order granting a new trial this appeal is taken. The plaintiff alleged in her complaint that she was the owner of the bonds in question, and that she deposited the same with Benjamin L. Guión for safe keeping, and that said Guión died on March 24, 1887, having said bonds in his possession, and that, subsequently, the defendants, who were the executors of his last will, came into possession ot said bonds, and that on November 26, 1887, the plaintiff demanded the same. The defendants in their answer, admit the demand and refusal, and deny each and every other allegation in the complaint, and further allego that fchey, as executors of said Guión, found the said six bonds m the box of the deceased, in a safe deposit company mMewTork city, with other property of said deceased. The defendants, for a further and separate defense, allege, that m the year 1885. the plaintiff delivered the bonds to Mr. Guión, ‘ to hold the same as the property of Eleanor Hildick, a daughter of the plaintiff,” and that the six bonds were the of the and not of the

The plaintiff proved by the testimony of John W. Macy, her son, and by papers in the handwriting of Mr. Guión, that, in the year 1882, the said Guión had in his possession, eleven bonds of the Union Pacific Company, five of which belonged to the said John W. Macy, and six to the plaintiff. And David T. Williams, one of the defendants, testified that in the box of the deceased, in the safe deposit company he found eleven such bonds, six of which he produced in court (the bonds in suit), and that the other five were delivered to said Macy, who had receipts therefor from Mr. Guión. Mr. Williams also testified that the six bonds were not included in the inventory of the personal estate of the deceased- that he did not take possession of them as the property of Mr. Guión, and that he did not claim that the bonds were his- property, but that he did claim, as set forth in the answer, that the plaintiff delivered the six bonds to said Guión to hold them as the property of Eleanor Hildick, and that the same were her property. The defendant, William, also testified that, in envelope which contained the bonds, he found a receipt to the plaintiff for the same, in the handwriting of Mr. Guión, and that he gave the receipt to plaintiff. After the examination of Mr. Williams and Mr. Macy, the plaintiff was called as a witness in her own behalf, and testified as follows:

Q. How did you get possession of that receipt ? A. I had it in my possession, I think, about two years; then I gave it to Mr. Guión.
Q. For what purpose ? Whereupon the defendants objected on the ground of calling for a personal transaction between the deceased and witness. The objection was overruled, and the answer was-“For safe keeping.” There are three, other exceptions on the same ground, in the testimony of plaintiff, which we will refer to hereafter, but the one now before us, brings up substantially the point on.which the new trial was granted below.

After a careful consideration, we are of opinion that the objection to the question was properly overruled, and that the plaintiff, under the circumstances of the case, was competent to testify that she left the receipt with Mr. Guión. There was no motion made to strike out the remainder of the answer as not responsive, * * * “Mr. Guión said: ‘ Give me the receipt, I will fix it so that Mr, Hildick can never get hold of them.’ ”

The defendants were not sued as executors, and the action was properly brought against them in their individual capacity (Anderson v. Thomson, 38 Hun, 394), and if they derived any title or interest from the deceased, the burden is on them to show such fact. On the death of Mr. Guión, they took possession of the bonds and held them' simply as custodians, and never have made any claim of title or interest in the same. We think that they derived no interest through the deceased within the spirit of section 829 of the Code. The test to be applied in the present case, is that the estate of Guión would be in no wise affected by the result. If the judgment is for plaintiffs, the estate will not be liable for costs.. If for the defendants, the estate gains no advantage. The defendants derived their interest through the daughter, Eleanor Hildick, and -if she had died before the trial, and the plaintiff had been called to testify as to a personal transaction with her relating to the title of the bonds, the testimony would have been inadmissible under section 829 of the Code, for the defendants relied upon their title. Mullins v. Chickering, 110 N. Y., 513; 18 N. Y. State Rep., 606.

We hold that the defendants, for the reason that they were sued properly in their individual capacity, and as they disclaim any title in themselves as executors, do not derive any interest in the bonds through the deceased, who was a mere depositary either for the plaintiff or for Eleanor Hildick. The title of the bonds and not their custody was in dispute, and the sole question litigated was whether the bonds belonged to the plaintiff or to her daughter. The spirit and purpose of section 829 of the Code is equality, and in a border case, the nature of the action, and the questions litigated are to be looked into. Wadsworth v. Heermans, 85 N. Y., 639, 641.

There was no violation of the letter or the spirit of the statute in admitting the testimony. The defendants have taken upon themselves a contest between the plaintiff and her daughter as to the ownership of the bonds. When this action was commenced, they could have relieved themselves from all liability by applying for leave to inter-plead the daughter pursuant to section 820 of the Code. They were not bound so to do, but having gone to trial, relying solely as a defense on the title of the daughter, they should not complain if the same testimony were held admissible against them as would be admitted against - the daughter, if she had been substituted as a defendant.

The exception which we have been considering was taken on the sole ground that the transaction was personal, and not that the testimony was incompetent on the question of title, and the other three exceptions on the same ground were, for the reasons above set forth, not well taken. While some of the testimony which was objected to was incompetent on the question of title, it was not objected to on that ground.

There are two other exceptions in the case, but we think that the testimony offered was competent under the authorities. Nicolay v. Unger et al., 80 N. Y., 54, 57; De Wolf v Williams, 69 id., 621

The order granting a new trial must be reversed, with costs.

Van Wyck, J., concurs.  