8 N.Y.S. 221, De Verry v. Schuyler

Citation:8 N.Y.S. 221
Opinion Judge:Fish, J.
Party Name:De Verry v. Schuyler
Attorney:Smith & Wellington, for appellant. B. S. Stone and F. J. Worcester, for respondent.
Judge Panel:Argued before Learned, P. J., and Fish and Putnam, JJ. Learned, P. J., concurs.
Case Date:December 11, 1889

Page 221

8 N.Y.S. 221

De Verry



Supreme Court of New York, General Term, Third Department

December 11, 1889

Appeal from special term, Rensselaer county.

Action by Richard De Verry against Clarkson C. Schuyler, executor of the will of Maria Aspinwall, deceased, to recover on four notes alleged to have been made by testator. The claim was referred to a referee, who found for plaintiff, and whose report was confirmed, and judgment entered thereon. Defendant appeals. Code Civil Proc. N.Y. § 829, prohibits parties, in actions against executors or administrators of deceased persons, from testifying to any personal transaction or communication with the decedent in relation to the claim, except where the executor or administrator is examined in his own behalf concerning the same transaction or communication.

Order and judgment reversed, the referee discharged, and a new trial granted; costs to abide the event.

Smith & Wellington, for appellant.

B. S. Stone and F. J. Worcester, for respondent.

Argued before Learned, P. J., and Fish and Putnam, JJ. Learned, P. J., concurs.


Page 222

Fish, J.

On the trial of this action, the defendant, as executor, was called as a witness in his own behalf, and was examined as to the handwriting of the notes in question, and of the signatures thereto. Upon this the plaintiff was called, sworn, and examined, as a witness in his own behalf, as to the transactions between himself and the testatrix, deceased. The evidence was objected to by counsel for the defendant as inadmissible under the provisions of section 829 of the Code of Civil Procedure. The objection was well taken; and the admission of the evidence was error, for which the judgment must be reversed. The respondent claims that the examination of the executor as a witness in relation to the handwriting opened the door to the testimony of respondent in his own behalf, within the exception contained in said section. The exception, properly read, is as follows: "Except where the executor is examined in his own behalf concerning the same transaction or communication." The plain meaning of the exception was to give the opposite party a chance to be heard, in answer to the testimony of the executor, upon the point as to which the executor gave evidence. The spirit and intent of the section is to protect a dead man's estate against claims, based upon the testimony of an interested person, which the deceased, if living, might controvert, and to suspend the operation of the rule only as to such transactions concerning which the executor himself is examined. To illustrate: Suppose the executor had given evidence in this case to the effect that he saw the notes in question made and delivered to the plaintiff by a person other than the testatrix; or that the executor drew the notes and delivered them himself, in the life-time of the testatrix. In the case stated, the plaintiff could be sworn as to the facts stated by the executor, and to controvert them; but it could not be claimed that such testimony of the executor brought the case within the exception, so as to allow plaintiff to be examined in his own behalf concerning alleged transactions between himself and the testatrix, and to show that she delivered the notes to him. It would be a clear perversion of the letter and spirit of the statute. This view is in harmony with divers judicial authorities. See Ward v. Plato, 23 Hun 402; Chadwick v. Fonner, 69 N.Y. 404; Pinney v. Orth, 88 N.Y. 447; Clift v. Moses, 112 N.Y. 426, 20 N.E. 392.

But, upon the merits, this recovery ought not to stand, except as to the one note of $ 500 made April 22, 1885. The weight of evidence is clearly against the plaintiff. His recovery rests upon very slight foundations, hardly sufficient, if uncontroverted, to justify such an inroad upon the estate, where the mouth of the alleged maker of the notes is closed. The chief witnesses sworn in support of the claim were in close intimacy with the plaintiff, evidently interested in securing favorable results; and the case is surrounded by circumstances of doubt and suspicion. It has the usual ear-marks of a manufactured claim, and is not well supported. The evidence offered by defendant tending to discredit the genuineness of the notes in question is stronger, and entitled to...

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