Niskern v. Haydock — 23 A.D. 175

Majority

p. 175

Sarah Frances Niskern, Respondent, v. George R. Haydock, as Executor, etc., of Melicent Stebbins, Deceased, Appellant.

Headnote

Claimant against a decedent's estate — declarations of an executor, made before Tie became such, a/re inadmissible in the claimant’s favor — conversations with a decedent—testimony of a legatee as to the same transaction.

A claimant for the value of alleged services rendered to a decedent cannot, upon a statutory reference of the claim, prove a conversation had, before the death of the decedent, between the person who- subsequently became the decedent’s executor and such claimant, relative to the merits of her claim, nor can she prove a letter which the executor wrote to her about the same time with reference to the claim. The declarations of an executor, before he becomes such, are not admissible against him in his-representative capacity.

Such a claimant is forbidden, by the provisions of section 829 of the Code of Civil Procedure, from testifying to a conversation which occurred between herself and the decedent at a time when, as she alleges, some money was paid to her on account of her claim; nor is such testimony made admissible by evidence, relative to the same transaction, given by a legatee under the will of the decedent who was not examined in her own behalf, and whose legacy would not be affected by the allowance or disallowance of the claim in question.

p. 176

Appeal by the defendant, ..George R., Haydock, as executor, etc., of Melicent Stebbins, deceased, from .a judgment of the Supreme . Court in favor of the plaintiff, -entered in the office of the clerk of the county of Westchester " on the 3d day of July, 1897, upon the report of’ a referee.

Frank L. Young, for the appellant.

Elmer P. Smith, for the respondent.

This proceeding is a reference,. under the statute, of a claim "against the estate of a deceased person. The plaintiff sought to-recover for1 personal services rendered to the deceased. The defendant denied .both the rendition of the services and; their alleged valué. On the trial the plaintiff was permitted to prove a conversation between - herself and the defendant Haydock concerning the. merits of her claim, which took ¡place prior to the death, of the deceased, and. also to place in evidence a letter written by-the defendant to her about the samé time. This evidence was admitted against the defendant’s objection and exception. The admission of this evidence was clearly erroneous. The rule is 'settled that the declaration of a trustee! before he came into the trust, or of an executor before he became such, is not admissible against him in his representative capacity. (1 Phillips Ev. [Cowen & Hill] 483; Fitzmahony v. Caulfield, 87 Hun, 66 ; Church v. Howard, 79 N. Y. 415 .) This error is too grave to be overlooked or to permit us to say that it could "have had no effect on "the result. We, therefore, feel constrained to reverse the judgment.

‘ The appellant claims that a further error was committed by the. admission of the testimony of the plaintiff as to the conversation between herself and the deceased at the time it is, alleged some money was .paid to the plaintiff on account of her claim. While we doubt whether the objections taken at the trial were sufficient to. properly, raise the cpiestion that, has been discussed before us, still, as the same point may arise on a new trial, we think proper to take " notice Of it. We are-of opinion that the admission of this testimony was erroneous. It called for a personal transaction between the, plaintiff and the deceased, and, therefore, under section. 8291 of

p. 177

the Code, plaintiff was not a competent witness to testify to that transaction. The fact that Mrs. Cooper, a legatee under the will of the deceased, testified as to the transaction did not render the testimony of the plaintiff competent. The estate was sufficient to pay Mrs. Cooper’s legacy, regardless of. the fate of plaintiff’s claim against it, and- Mrs. Cooper was .not examined on her own behalf within the terms of the exception contained in section 829.

The judgment appealed from should be reversed and a new trial granted before another referee, to be appointed at Special Term, costs to abide the event.

All concurred.

Judgment reversed and new trial granted before another referee, to be appointed at Special Term, costs to abide the event.

Cases cited

Church v. Howard 79 N. Y. 415 N.Y. 1880-01-13 p. 176