O'Brien v. Weiler

• Decision Date: 05 December 1893
• Citation: 35 N.E. 587,140 N.Y. 281
• Parties: O'BRIEN et al. v. WEILER.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 281

35 N.E. 587

O'BRIEN et al.

v.WEILER.

Court of Appeals of New York.

Dec. 5, 1893.

Appeal from supreme court, general term, first department.

Action by William S. O'Brien and Freelove E. O'Brien, as executor and executrix of Peter T. O'Brien, deceased, against the Citizens' Savings Bank of the city of New York, and Peter R. Weiler, as executor of said Peter T. O'Brien, deceased, to recover money deposited by deceased in the bank. Before trial, Peter R. Weiler, as administrator of Sarah E. Weiler, was substituted for the bank, as codefendant. From a judgment of the general term (22 N. Y. Supp. 627) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

John D. Townsend, for appellant.

Abram Kling, for respondents.

MAYNARD, J.

The plaintiffs, as executor and executrix of the will of Peter T. O'Brien, deceased, brought this action against the Citizens' Savings Bank, of New York city, to recover the sum of $3,076, standing to the credit of their testator, as guardian of his daughter, Sarah E. O'Brien, upon the books of the bank, and which was originally deposited in 1871. Sarah E. O'Brien married the defendant Peter Weiler, and died intestate, and her husband was appointed the administrator of her estate, and in that capacity claimed the moneys standing to the credit of the father, as her guardian, upon the books of the bank. Upon the motion of the bank, he was substituted as defendant in its place, and it was directed to hold the moneys subject to the order of the court when final judgment should be entered in the action. Weiler was also one of the executors of the father's will, and, having refused to unite with the plaintiffs in bringing the action, he was also made defendant in that capacity. The real issue litigated was the title to this fund. By the will of Peter T. O'Brien, the use of his entire estate, including these moneys, if recovered, was given to his widow, the plaintiff Freelove E. O'Brien, who is plaintiff in her capacity of executrix, and after her death the principal is bequeathed to his son, William S. O'Brien, who, as executor, is her coplaintiff.

Upon the trial it became important to prove by the mother, the plaintiff Freelove E. O'Brien, a conversation between the father and daughter which took place in her presence. After she had been sworn as a witness, the plaintiffs put in evidence a writing executed by her under seal, and entitled in this action, in which she recited that whereas she had been produced as a witness, and had been objected to on the ground that she was interested therein, because, under the will of her husband, she was entitled to the whole income of his estate during her life, and would be entitled to the income upon the money in litigation in this action, therefore, in consideration of one dollar to her in hand paid, she thereby released and discharged the executors of the estate of and from all interest or claim she might have to the moneys involved in this action, and to the interest and income thereof. She was then asked this question: ‘Do you recollect any interview or conversationtaking place in January, 1881, in reference to any moneys in a savings bank, between your husband and your daughter and yourself? If so, state fully what it was,’-which was objected to on the ground that the witness was incompetent to testify to such a transaction or conversation, she being a party in interest. The objection was overruled, an exception taken, and the witness answered the question.

It is plain that whatever interest the witness had in the fund in controversy was, by virtue of this release, transferred to her coplaintiff, who, by the terms of the will, took the entire estate, subject only to the right of the witness to the income during her life. Even if the legal title was vested in the executors, he was one of the executors; but they held the legal title for the beneficiaries under the will, and as he had become the sole beneficiary, so far as this fund was concerned, he had, both personally and as executor, acquired an interest in the subject of the controversy from the witness. Section 829 of the Code prohibits a person from, through, or under whom a party or person interested in the event of an action derives his interest or title, by assignment or otherwise, from testifying in behalf of the party succeeding to his title or interest, against the representatives of a deceased person, as to any personal transaction or communication between the witness and the deceased. William S. O'Brien was both a party to the action, and interested in the event of it. He derived his title to the income of this fund by assignment from his mother. She was under...