In re the Estate of Wood , 423 N.Y.S.2d 260 ( 1979 )

OPINION OF THE COURT

Greenblott, J. P.

Decedent Robert S. Wood died on June 27, 1976 at St. Peter’s Hospital in Albany, New York, following intermittent hospitalization since April 1, 1976 for a respiratory condition. In this proceeding, the executor of his last will and testament, a designated one-third residuary beneficiary thereof (the respondent Frank H. Purzycki and appellant LeRoy Chesebro being the other one-third residuary beneficiaries), sought recovery of certain assets of decedent’s estate in the hands of the respondents. Upon a trial of issues framed by the Surrogate, the evidence centered on a history of various banking transactions among the Purzyckis, the Chesebros and the decedent.

The Purzyckis admitted that shortly before his death they came into possession of approximately $13,000 belonging to decedent, but they asserted that on April 1, 1976, they delivered the money to him in cash at the nursing home where he then resided. There was additional testimony of subsequent cash deliveries. The Chesebros assert that they came into possession of the money and other property as a result of a gift from the decedent.

The first question here presented is whether the testimony of respondents Purzycki in support of their position is "a personal transaction or communication” with the deceased, and whether it is "the same transaction or communication” upon which the executor was examined in his own behalf (CPLR 4519). The Surrogate concluded that the executor waived the protection of the Dead Man’s Statute. He reasoned that when the executor produced evidence of the opening of the bank accounts and the withdrawals therefrom, he "opened the door” to the testimony by the respondents concerning what they did with the cash following the withdrawals. We agree.

The executor presented a direct case consisting of testimony reflecting a search for decedent’s assets, and a check cashed by respondents from one of decedent’s accounts. The executor did not introduce evidence on the issue of title to the bank accounts at trial nor did he prove any of the various transactions at trial because these facts were admitted by respondents. Had these facts not been admitted, the executor would have been forced to testify to these transactions with the decedent in order to establish a prima facie case. Accordingly, the Surrogate correctly reasoned that the executor should not be allowed to show part of the transaction, and then prevent the respondents from explaining the remainder. (Matter of Anooshian, 13 AD2d 626.) We further conclude that the testimony of the respondent Purzycki was not incredible as a matter of law, but, rather, raised questions of credibility which the Surrogate could properly resolve in favor of respondents Purzycki.

For the same reasons, the appellants Chesebro should have been entitled to the same treatment as the Purzyckis. The executor waived the protection of the statute by introducing evidence of transactions with the decedent by the Chesebros. The "door was opened” and the Chesebros should have been permitted to testify to the entirety of the transactions.

The decree should, therefore, be modified by reversing so much thereof as granted the executor recovery of money and other property in the possession of the Chesebros, and the matter should be remitted to permit testimony by the Chesebros on the question of whether the decedent had made a gift of the money and other property.

The decree should be modified, on the law and the facts, by reversing so much thereof as grants relief sought by petitioner Medwin against appellants Chesebro, and the matter remitted to the Surrogate of Albany County for further proceedings not inconsistent herewith, and, as so modified, affirmed, without costs.