
    Annie Spindler, Appellant, v. Mary E. Gibson and John Jerolomon, as Executor, etc., of John Hamilton, Deceased, Respondents, Impleaded with Annie Hamilton.
    
      Witness — competency of a tenant by the curtesy initiate to testify to personal transactions with a decedent — testimony as to a conversation in his presence between the decedent and another.
    
    tn an action brought by a sister of a decedent to set aside the probate of the latter’s will, on the ground that it was obtained by undue influence, the fact that, if the plaintiff is successful, her husband will have a tenancy by the curtesy initiate in the property passing to the plaintiff from the decedent, does not render the husband incompetent under section 839 of the Code of Civil Procedure to testify to what occurred and what was said on an occasion when the decedent was sick, just prior to his death.
    
      Semble, that a witness, whose interest is sufficient to disqualify him to-testify to any personal transaction or communication with the deceased, is not to be excluded from testifying to a conversation between the deceased and another in his presence, in which he took no part.
    Appeal by the plaintiff, Annie Spindler, from a judgment of the Supreme Court in favor of the defendants, Mary E. Gibson and another, entered in the office of the clerk of the county of New York on the 18th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York . Trial Term.
    
      Thomas J. O’Neill, for the appellant.
    
      William Arrowsmith, for the respondent Jerolomon.
    
      William 0. Gam/pbeTl, for the respondent Gibson.
   O’Brien, J.:

This action is brought by a sister of John-Hamilton, deceased, to set aside the probate of his will on the ground that it was obtained by undue influence exercised by the beneficiary thereunder, the defendant Mary E. Gibson.

The testator at his death was sixty years of age and left him surviving, besides his sister the plaintiff, who is his only blood relation, his wife, with whom, it appears, he had lived happily until 1898, whén he began to quarrel with her and finally left her on account of his infatuation with the defendant. The evidence would justify the inference that the relations between the deceased and Mary E. Gibson were not only very intimate but were of a meretricious nature.

The theory of the plaintiff was that the deceased was of weak mind and was influenced in the disposition made of his property by the defendant Gibson, who had obtained such mastery over him that he abandoned his wife and only relative, and gave his property to a stranger.

The record, as presented, is barren of any evidence which would justify .the inference that the deceased was of weak mind, but, on the contrary, it appears from the plaintiff’s own evidence that he was strong-minded, and able to understand and attend to his own affairs, and that this ability continued even after he was taken sick with the disease of consumption which preceded his death. The plaintiff had, therefore, upon the evidence admitted, failed to make out a case entitling her to go to the jury upon the question of undue influence; and were it not for rulings made in excluding evidence, it would be our duty to affirm the judgment.

The plaintiff called as a witness her husband, and attempted to show by him what occurred, and what was said on an occasion when the deceased was sick just prior to his death ; but all this line of evidence as to what this witness saw and heard at that or other times was excluded upon the ground that it was in contravention of section 829 of the Code of Civil Procedure which prohibits a person interested in the event, or a person from, through or under whom such interested person derives his interest, from testifying as to any personal transaction or communication between the witness and the deceased. The reason stated by the learned trial judge for the ruling was that Mr. Spindler’s testimony was incompetent because if the will were set aside he would be a tenant by the curtesy in the property to .which his wife, the plaintiff, might succeed.

That this is not a sufficient reason has been expressly held in Matter of Clark (40 Hun, 237), wherein it was said: “ Tenancy by the curtesy initiate ceased to be a certain interest in lands thereafter acquired when the statutes permitted the wife to dispose of her estate in them.” And again: “ The test of interest of a witness is that he will either gain or lose by the operation of the judgment, and it must be present and certain, not uncertain, remote or. contingent. * * * They (the husbands) had no interest in the-event of the controversy in a legal sense.” (See, also, Humphrey v. Sweeting, 92 Hun, 447, 450, and O'Brien v. Weiler, 140 N. Y. 284.)

The latter case, although not affecting the question of the extent of the interest of a husband in his wife’s estate, is authority for the proposition that a witness whose interest is sufficient to disqualify him from testifying to any personal transaction or communication with the deceased, is not, however, to be excluded from testifying to a conversation between the deceased and another in his presence,, but in which he took no part. For the other reason, however, that the husband has no such direct or certain interest in a legal sense by curtesy initiate in his wife’s property as to have the prohibition of the statute apply to him, he was a competent witness as to what was-said and done in his presence.

What evidence would have been elicited had the questions been answered, and how far it might have gone to sustain the plaintiff’s cause of action, it is, of course, impossible for us to determine, for it would be at best but speculation. Having reached the conclusion, however, that such evidence was competent and that the plaintiff was entitled to have it, the ruling excluding it was such error that, notwithstanding the slight evidence otherwise adduced upon the question of undue influence, the plaintiff is entitled to a new trial. Accordingly, we think this judgment must be reversed and á new trial ordered, with costs tó the appellant to abide the event.

Ingraham, Hatch and Laughlin, JJ., concurred; Van Brunt,. P. J., concurred in result.

Judgment reversed, new trial ordered, costs to appellant to abide event.  