Erwin v. Erwin

The plaintiff is the son of the late Francis E. Erwin, who died in the year 1887. As early as 1853 the decedent was the owner of the premises, consisting of 250 acres of farm land, the title to which remained in him until a few months before his death.

The plaintiff’s case, as alleged by him in his complaint, is, that

In his lifetime, and in the year 1887, a few months before his death, the decedent conveyed the premisises, vesting the fee thereof in the defendant, Francis Erwin, who is also a son of the deceased. The deceased left a last will and testament, in which he made provision for the support of the plaintiff during his lifetime, the character of which it is unnecessary to mention. At the time of the making of the alleged agreement, the plaintiff was married, and his wife was living at the time of the trial, and she was called and examined as a witness in his behalf, and gave evidence tending to prove that the decedent made the paroi agreement to convey, which the plaintiff is seeking to enforce.

Without her evidence as to the terms of the agreement, it is doubtful whether the plaintiff made a case entitling him to relief; at least-it appears by the record that she gave the only direct evidence as to the terms of the agreement between the plaintiff and his father. At that time the plaintiff had been married less than a year and he and his wife were living with Ms father as members of his family. The only question which wc have deemed it necessary to discuss in disposing of this appeal relates to the competency of tins evidence under the Code of Civil Procedure. The provisions of the Code applicable to this question may be abbreviated and stated as follows: “ Section 829. Upon the trial of an action * * * a party or person interested in the event * * "" shall not be examined as a witness in his own behalf or interest * * * against * * * a person deriving his title or interest from, through, or under a deceased person, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person.’’ The title which the defendant, Francis Erwin, claims to have in the lands in question, and which he is seeking to protect against the plaintiffs claim of title, was derived from his deceased father, and it is thus conceded that one of the circumstances exists which it is 'necessary should appear to sustain the objection of incompetency on the part of the witness. Was the witness interested in the event of the action ? The cases of Steele v. Ward, 30 Hun, 555 , and Simar v. Canaday, 53 N. Y., 298 , are sufficient authorities in support of the appell

Her husband, by the force of the judgment, becomes seized of an estate in fee of the premises, and the witness, his wife, has also a claim of an inchoate or contingent right of dower therein which the law recognizes as property possessing some pecuniary value. The late case of Witthaus v. Schack, 105 N.Y., 832 ; 7 N.Y. State Rep., 345, is not in conflict with the proposition that an inchoate right of dower in lands is a claim of value, and can only be extinguished with the consent of the wife of the owner of the fee. That case decides that the wife has no estate in the lands during the life time of her husband which she can convey; that her inchoate right of dower is but a contingent claim incapable of transfer by grant or conveyance, susceptible only during its inchoate state of extinguishment, and when she joins her husband in a deed of his lands, that act on her part does not constitute her a grantor of the premises, and that the grantee does not derive any title to the premises conveyed though, from, or under the wife, but simply secures an extinguishment of her contingent right of dower.

The chief disputation arises over the next question, which is, did • the evidence which the witness was permitted to give relate to a personal transaction or communication between herself and Brands B. Brwin, the defendant’s grantor. This is to be tested by the witness’ own statements as to the circumstances under which she was present and heard the conversation which she related, which was substantially as follows: The evening the agreement was made, the family, including Mr. Erwin and his wife, the plaintiff and the witness, were in the parlor and she and her husband were seated on a sofa when Mr. Erwin turned towards the plaintiff and herself and said, using the exact language of the witness, “ Edward, my son, I have at last got that 60 odd acres that I wanted to add to your farm. I give you the whole farm. I want you to go on it and live. I will help you to build a house and barn. You may have all you make off the farm, and when I die it shall be yours, but I will keep the title in my own hands while I. live that you may neither burden or lose it in my life time. He told Edwaad to improve and fix it up; go on to it and improve it and fix it up; I will help you build a house and barn; to this Edward replied, Bather, that is all right I agree to that.”

She also stated that her husband and his father, that evening, drew the plan for a house. The witness also stated that she took no part in the conversation, for the reason that Mr. Brwin did not like her, and she was afraid that if she spoke he would be angry and oppose the arrangement.

It seems plain that Mrs. Brwin was a party to that transaction within the spirit and meaning of the statute, although she was not named as a party to the agreement. The arrangement was wholly a family affair, and was manifestly intended that the farm should be a future home for the plaintiff and his family; a gift by the

In commenting upon these rules the court remarked: “ Each of these species of testimony is as much opposed to the spirit and intent of the statute as the other. If the proposed witness has asked a question of the decedent and it is answered it is a conversation; if while the decedent is conversing with a third person, the witness by word or sign participates in it, or is referred to, it is evidence of what occurred and cannot be received.” The witness admits that she was present and listened to the conversation, and also substantially admits that she participated in it within the sense and spirit of the statute. Although she says she did not take any part in the conversation, she gives as a reason for her silence that Mr. Erwin did not like her and she was afraid of making him angry if she said anything and that he would then oppose the arrangement. That she was desirous that the arrangement should be completed and was present giving strict attention to what was said and done is admitted, and her interest in the negotiations must have been observed by Mr. Erwin and satisfied him that she was gratified with the proposed agreement. It is impossible to suppose, that the witness did not give some sign, by her actions, or the expression of her countenance, which were recognized by Mr. Erwin as a sign that the witness assented to the arrangement which he proposed to make for her husband, that he might establish a home

In view of the particular features presented by this case, which, in our opinion, made the witness incompetent under the provisions of § 829, it is unnecessary to refer to the cases cited by the respondent, which laid down the general rule that the provisions of the Code do not preclude a party or an interested witness from testifying to the statements of a deceased person made to a third person in the hearing of the witness, and to distinguish this case as it readily may be from the cases referred to, it is so manifest that the appellants were prejudiced by incompetent evidence that a new trial must be granted, without considering the strength of the plaintiff’s case upon the legitimate evidence offered and received by the trial court.

Judgment reversed and a new trial granted, with costs of this appeal to abide the final award of costs.

Dwight, J., concurs; Macomber, J., not sitting.