O'Brien v. Weiler ( 1893 )

VAN BRUNT, P. J.

We might very well rest our decision in the affirmance of the judgment in this case upon the opinion of the court below, but, as certain exceptions to the admission of evidence have been taken, it will be necessary to notice these in the disposition of this appeal. It is claimed that it was error to permit the widow of the testator to testify to conversations between her husband and the deceased daughter regarding the ownership of the property which is the subject of this action, it being claimed that under section 829 of the Code of Civil Procedure she was excluded from testifying. The widow was entitled, under the will of her husband, to the income of his estate, real and personal, during her life, and at her death her associate plaintiff succeeds to her interest. It appeared, however, upon the trial that the witness, for the purpose of becoming such witness, had executed a release, whereby she released and discharged the estate of and from all interest or claim she might have to the moneys involved in this action, or the income thereof; and upon the introduction of such release the testimony of the witness was received. It is claimed that because the witness did not release all her interest in the estate, or which she might acquire under the will, therefore she was not competent. It is undoubtedly true that a legatee or devisee under a will is incompetent to testify to personal transactions or communications with the deceased preceding,, attending, or succeeding the execution of the will, in support of which proposition various authorities may be cited. But it is equally true that a party may become competent by releasing his interest in the subject-matter involved, and therefore, when the witness released and discharged the estate of and from all interest or claim she might have in and to the moneys involved in this action, she was no longer a party or person interested in the event of the action, and consequently did not come within the prohibition of section 829. All the cases cited by the learned counsel for the appellant in support of the claim that there must be a release of all interest under the will in order to enable a legatee or person interested in the will to become a competent witness as to personal transactions or communications between the witness and the testator, were those relating to the validity of the will itself, and consequently, without such a general release, interest still remained. Those cases, therefore, are entirely different from one in which it is simply sought to collect a debt due to the estate; and, as already observed, where the legatee under the will releases all his interest in or claim to such debt, or any income derivable therefrom, it is apparent that all interest in the event of the litigation has ceased, and the witness has become competent. The mere fact that such release swells the interest of other legatees does not in any way continue the interest of the witness who has released the same.

The claim that there was no evidence to sustain the finding of the court below to the effect that the testator advanced out of his own money the sum invested for the use of his daughter in the purchase of the Second Avenue Railroad bonds, and that his daughter receivéd the same as the equivalent of her money deposited in the bank, is certainly not well taken. The evidence of the widow was clearly to the effect that the daughter accepted the bonds purchased by her husband in lieu of the money deposited in the bank; and, even if the books of the bank showed that no money had been taken from the bank at the time, but that the interest continued to accumulate until the death of the testator, it was a substitution of the bonds for the money by and with the consent of the beneficiary. The claim that it was error to permit the widow, as the mother of the deceased daughter, to testify to conversations she claimed to have had with her, not in the presence of the testator, in regard to the property which is the subject of this action, does not seem to have any foundation. It is claimed that the release given and put in evidence was not applicable to the daughter, and therefore did not make her a competent witness. The question was not whether it was applicable to the daughter or not. The point was that by the giving of the release the widow had ceased to be interested in the event of the litigation, and therefore she was just as competent a witness as though she never had had any interest whatever in this particular money under the will of her husband.

The claim as to the right of proving the custom of the bank when they struck out the. name of a party in a pass book was entirely immaterial. .The witness was asked as to the facts, and he testified that the striking out of the name in the pass book he did not think had been done at the bank, and the defendant had the benefit of this evidence, and it seems to us that that was going as far as the rules of evidence could possibly justify. What this bank was accustomed' to do under these particular circumstances clearly could not be evidence as against the deceased.

The only other objection was to the exclusion of certain evidence as to declarations made by an attorney Who drew certain papers for the deceased shortly after the execution of those papers. It is true that in the question une witness was asked whether he did not have such conversation with the attorney as the representative of the deceased, and when the witness said that he did have such conversation he was asked what it was. This was objected to, and the objection sustained. But it is clear' that an attorney who was employed by the testator to draw papers was not also employed by him for the purpose of making declarations in respect to his property. If it was claimed upon the part of the defendant that such declarations were competent, it certainly was their, duty to first establish by evidence the fact that the attorney was authorized to make such declarations on behalf of his client before the court would be justified in entertaining for a moment the admission of such testimony. Upon the whole case we are of opinion that no errors were committed, and that the judgment should be affirmed, with costs. All concur.