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Savercool v. Wilsey

5 A.D. 562 Court N.Y. App. Div. English

Delivered by Herrick, J.:

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p. 562
Lavina Savercool, as Administratrix, etc., of Marcus D. Brink, Deceased, Appellant, v. Julia Brink Wilsey, Respondent.

Headnote

.’JEvidance •— a husband or agent or sister may testify to transactions with a deceased person — testimony of a party that he has paid a decedent’s bills.
•Section 839 of the Code of Civil Procedure does not preclude the husband or agent of an interested party from testifying in regard to a personal transaction with a deceased party, as against the legal representative of the decedent.
'The testimony of the sisters of the interested party as to conversations had by them with the deceased is not incompetent, especially when the testimony given by them is against their own interest.
A party defendant claiming under a written transfer of property from a person since deceased, may testify, as against the legal representatives of the decedent, to the fact that she has paid doctors’ hills of the decedent and his funeral expenses, which she was obliged to pay as a part of the consideration of the transfer.
Appeal by the plaintiff, Lavina Savercool, as administratrix, etc., of Marcus D. Brink, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk oi the county of Tompkins on the 21th day of January, 1896, upon the
p. 563
verdict of a jury rendered after a trial at the Tompkins Circuit, and also from an order entered in said clerk’s office on the 24th day of January, 1896, denying the plaintiff’s motion for a new trial.
J. J. McGuire, for the appellant.
M. N. Tompkins, for the respondent.

This is an appeal by the plaintiff from a judgment entered upon the verdict of a jury in favor of the defendant, and from an order denying a motion for a new trial.

It appears that the defendant and Marcus D. Brink, deceased, were brother and sister, and for many years had lived together upon a farm which for some years had been owned by the defendant. On the 15th day of May, 1893, the defendant executed and delivered to her brother, Marcus D. Brink, a bill of sale of certain personal property which was upon the farm; this bill of sale was filed in the town clerk’s office May 17, 1893. Marcus D. Brink died on or about the 20th of January, 1891. The plaintiff was duly appointed administratrix of his estate, and finding his bill of sale on file, she made a demand through her husband upon the defendant for the delivery to her as administratrix of the personal property mentioned in such bill of sale; the defendant refused to deliver possession of the property, and thereupon this action was commenced for the value thereof. Upon the trial the defendant produced a paper purporting to be executed by her brother, Marcus D. Brink, dated December 2, 1893, whereby he transferred to the •defendant all his property for the consideration of $150, and the further consideration that the defendant should take care of him as long as he lived. The paper recites that the defendant paid five •dollars to bind the bargain.

If the evidence that was admitted upon the trial was legally .admissible, there is sufficient to sustain the verdict of the jury.

The principal exceptions to the admission of evidence were taken under section 829 of the Code of Civil Procedure.

The husband of the defendant was sworn as a witness and gave testimony as to the execution of the bill of sale, and the statements made to him by the deceased at that time. This testimony

p. 564
was taken under objections and exceptions by the plaintiff, upon the ground that lie was the husband of the defendant and acting as her agent, and was, therefore, interested in the event of the action and incompetent to testify to any transaction with the deceased. I do not think this objection can be sustained ; it has been held that section 829 of the Code does not exclude either the agent or husband of the party from testifying. (Nearpass v. Gilman, 104 N. Y. 506 ; Whitman v. Foley, 125 id. 651-659 .)

Two of the sisters of the defendant were also sworn upon the part of the defendant and gave testimony as to conversations with the deceased, which was also objected and excepted to ; I do not think the exception to the testimony of either is valid.

There is no claim that the defendant took any interest in the property by, through or under these witnesses; they were not sworn, nor did they give evidence iii behalf of their own interest, or in behalf of any party succeeding to their title or interest. The testimony that they gave was against their own interest. If the alleged bill of sale of December second was invalid they would share in their brother’s property; if it was a valid bill of sale it excluded them from all interest in such property; their testimony tended to establish the validity thereof, consequently it did not come within the inhibition of section 829. (Carpenter v. Soule, 88 N. Y. 251 .)

The testimony as to the payment by the defendant of the doctor’s bills and funeral expenses of the deceased I think was proper. There was testimony tending to show that the $150, expressed as part consideration for the transfer by the deceased to the defendant of the personal property in question, was to pay his debts and funeral expenses; and this testimony was proof that she had by the payment of such bills paid the consideration for the transfer of the personal property to her.

The order and judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

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