The Surrogate.
[After stating the facts and the substance of the testimony as above],—I am clearly of [473]*473the opinion that there is evidence sufficient to sustain the findings of fact of the auditor, and such as forbids my interfering with his conclusions, especially as the auditor had the witnesses before him, and could best judge of their credibility. I must therefore assume, for the purpose of disposing of the question of confirmation of the report, that the facts are correctly found by the auditor, and hence the only questions to be considered are those of law, growing out of and dependent upon the questions ot fact thus found.
As to the disallowance of the executor’s expenses in coming from Philadelphia to attend the accounting, I am of the opinion that the auditor was correct in his conclusions. The executor, when appointed, resided in the city of New York, and it may be presumed that the testator took into account that fact, as enabling the executor to give the necessary attention to the estate, without any extraordinary expenses.
It. is urged by counsel for the executor that the appointment did not involve the necessity of the executor’s continuing to reside in the same place, without regard to the exigencies of his business, and personal interests, which is doubtless true; and when he removed from the jurisdiction of the court, he was at liberty to do so, but not at the expense of the estate; and if the principle contended for by the executor be sustained, then the removal of an executor to California, or Europe, might involve, to an ordinary estate, ruinous expenses in returning to settle up the estate, and when carried to such an extent, the absurdity of the pretended principle, is made entirely apparent.
The question as to the advance charged by the testator, of $12,500, against the executor, James Marsh, Jun., is one of more embarrassment because of the contradictory character of the testimony.
[474]*474If the testimony warranted the conclusion that the stock of the Fertilizing Company, at the time when it was delivered to said executor by the testator, and charged to him, was valueless, I should not hesitate to say, that the charge by way of advancement was without consideration, and void; but the testimony offered by the executor is not satisfactory upon the subject of the alleged worthlessness of the stock in question. It does not appear that on discovering that it was worthless, he offered to return it to the testator, or made any claim against him in respect to it, but on the contrary, he seems to have put it into another company; besides, the proof abundantly sustains the auditor, when he finds in substance that after his father’s death the executor named, admitted the receipt of $12,500, by way of advancement by his father, charged to him upon Ms books, and that he was willing to return $2,500 thereof, in order to equalize his advance with the advance made to his sister. It is true that the executor claims that if that offer was made, it was upon the expectation that he would be able to perfect the title to certain property at Chicago, which he had verbally purchased of Ms father, at about half of its real value; but upon this question he is substantially contradicted by several witnesses, and the auditor having the witnesses before him, hearing their testimony and observing their manner, is the best judge of their credibility ; and Ms finding in that respect ought not to be disturbed on a motion to confirm the report.
There are several exceptions taken to the ruling of the auditor, none of wMch need special consideration, except the oree above stated, involving the competency of the executor to testify, in respect to an alleged interview between the testator and one Mead, in the presence and hearing of the witness, James Marsh, Jr., in Mr. Mead’s office at Chicago.
[475]*475It is quite probable that the auditor in his exclusion of this question, may have regarded it excluded by the 399th section of the Code, which provides that no party to an action, or proceeding, nor any person interested in the event thereof, shall be examined as a witness in regard to any personal transaction, or communication between such witness and a person at the time of such examination, deceased.
There are abundant authorities justifying the exclusion of any personal communication or transaction, between the witness Marsh and the deceased. In Ross v. Ross (6 Sun, 182), it was held that in an action by a physician, to recover for services to the testator, the plaintiff could not testify whether he treated the testator professionally, or not, on the ground that such testimony would tend to prove a promise on the part of the testator to pay for such services, and the law would thereby imply the obligation to pay.
In Howell v. Van Sicklen (Id., 115), it was held that in an action on a note made by the testator, where payment was pleaded, the plaintiff could not give evidence of its non-payment.
In Le Clare v. Stewart (8 Id., 127), it was held, that the next of kin interested in the event of an action, though not a party, could not testify to a conversation with defendant’s intestate whether favorable to, or against his interest.
In Dyer v. Dyer (48 Barb., 190), it is held that in proceeding’s for the sale of real estate by the administrator to pay debts,—the claim of the respondent being disputed by the administrator, and tried by the Surrogate, after the witness had testified as to a conversation between the intestate and claimant, establishing the transaction,—the claimant could not be examined to prove that no such conversation had occurred, and [476]*476that no such transaction had taken place. In that case Justice Miller said that proof that no such transaction occurred, was not an examination in respect to such transaction, and that it was not a satisfactory answer to the objection urged to the testimony.
Again on page 193, he says: “It would be, I think, an evasion of the spirit and scope of this provision of the Code, to hold that proof contradicting the evidence introduced had no relation to the transaction, which had been established by the witnesses introduced by the administrator, because it proved that no such trasaction had ever taken place.”
numerous other authorities might be cited, establishing the same principle; but such testimony should not be excluded, unless brought substantially within the provisions of the section; and the question in this ease, in my opinion, did not come within its provisions, and did not call either for the personal transaction, or communication between* witness and the testator, but for an interview between the testator and a third party heard by witness.
In Simmons v. Sisson (23 N. Y., 264), it was held that the section in question did not prohibit a. party sued by the administrator, from testifying to a conversation heard by him, between the deceased and a third person;—that such hearing was not such a transaction between deceased, and the witness.
In Lobdell v. Lobdell (36 N. Y., 327), Justice Parker says: “ The transactions or communications respecting which the witness sought to testify, were not between himself and the deceased person, or, in the explict language of the statute, had personally by said party with the deceased person, but between the deceased and a third person.
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The Surrogate.
[After stating the facts and the substance of the testimony as above],—I am clearly of [473]*473the opinion that there is evidence sufficient to sustain the findings of fact of the auditor, and such as forbids my interfering with his conclusions, especially as the auditor had the witnesses before him, and could best judge of their credibility. I must therefore assume, for the purpose of disposing of the question of confirmation of the report, that the facts are correctly found by the auditor, and hence the only questions to be considered are those of law, growing out of and dependent upon the questions ot fact thus found.
As to the disallowance of the executor’s expenses in coming from Philadelphia to attend the accounting, I am of the opinion that the auditor was correct in his conclusions. The executor, when appointed, resided in the city of New York, and it may be presumed that the testator took into account that fact, as enabling the executor to give the necessary attention to the estate, without any extraordinary expenses.
It. is urged by counsel for the executor that the appointment did not involve the necessity of the executor’s continuing to reside in the same place, without regard to the exigencies of his business, and personal interests, which is doubtless true; and when he removed from the jurisdiction of the court, he was at liberty to do so, but not at the expense of the estate; and if the principle contended for by the executor be sustained, then the removal of an executor to California, or Europe, might involve, to an ordinary estate, ruinous expenses in returning to settle up the estate, and when carried to such an extent, the absurdity of the pretended principle, is made entirely apparent.
The question as to the advance charged by the testator, of $12,500, against the executor, James Marsh, Jun., is one of more embarrassment because of the contradictory character of the testimony.
[474]*474If the testimony warranted the conclusion that the stock of the Fertilizing Company, at the time when it was delivered to said executor by the testator, and charged to him, was valueless, I should not hesitate to say, that the charge by way of advancement was without consideration, and void; but the testimony offered by the executor is not satisfactory upon the subject of the alleged worthlessness of the stock in question. It does not appear that on discovering that it was worthless, he offered to return it to the testator, or made any claim against him in respect to it, but on the contrary, he seems to have put it into another company; besides, the proof abundantly sustains the auditor, when he finds in substance that after his father’s death the executor named, admitted the receipt of $12,500, by way of advancement by his father, charged to him upon Ms books, and that he was willing to return $2,500 thereof, in order to equalize his advance with the advance made to his sister. It is true that the executor claims that if that offer was made, it was upon the expectation that he would be able to perfect the title to certain property at Chicago, which he had verbally purchased of Ms father, at about half of its real value; but upon this question he is substantially contradicted by several witnesses, and the auditor having the witnesses before him, hearing their testimony and observing their manner, is the best judge of their credibility ; and Ms finding in that respect ought not to be disturbed on a motion to confirm the report.
There are several exceptions taken to the ruling of the auditor, none of wMch need special consideration, except the oree above stated, involving the competency of the executor to testify, in respect to an alleged interview between the testator and one Mead, in the presence and hearing of the witness, James Marsh, Jr., in Mr. Mead’s office at Chicago.
[475]*475It is quite probable that the auditor in his exclusion of this question, may have regarded it excluded by the 399th section of the Code, which provides that no party to an action, or proceeding, nor any person interested in the event thereof, shall be examined as a witness in regard to any personal transaction, or communication between such witness and a person at the time of such examination, deceased.
There are abundant authorities justifying the exclusion of any personal communication or transaction, between the witness Marsh and the deceased. In Ross v. Ross (6 Sun, 182), it was held that in an action by a physician, to recover for services to the testator, the plaintiff could not testify whether he treated the testator professionally, or not, on the ground that such testimony would tend to prove a promise on the part of the testator to pay for such services, and the law would thereby imply the obligation to pay.
In Howell v. Van Sicklen (Id., 115), it was held that in an action on a note made by the testator, where payment was pleaded, the plaintiff could not give evidence of its non-payment.
In Le Clare v. Stewart (8 Id., 127), it was held, that the next of kin interested in the event of an action, though not a party, could not testify to a conversation with defendant’s intestate whether favorable to, or against his interest.
In Dyer v. Dyer (48 Barb., 190), it is held that in proceeding’s for the sale of real estate by the administrator to pay debts,—the claim of the respondent being disputed by the administrator, and tried by the Surrogate, after the witness had testified as to a conversation between the intestate and claimant, establishing the transaction,—the claimant could not be examined to prove that no such conversation had occurred, and [476]*476that no such transaction had taken place. In that case Justice Miller said that proof that no such transaction occurred, was not an examination in respect to such transaction, and that it was not a satisfactory answer to the objection urged to the testimony.
Again on page 193, he says: “It would be, I think, an evasion of the spirit and scope of this provision of the Code, to hold that proof contradicting the evidence introduced had no relation to the transaction, which had been established by the witnesses introduced by the administrator, because it proved that no such trasaction had ever taken place.”
numerous other authorities might be cited, establishing the same principle; but such testimony should not be excluded, unless brought substantially within the provisions of the section; and the question in this ease, in my opinion, did not come within its provisions, and did not call either for the personal transaction, or communication between* witness and the testator, but for an interview between the testator and a third party heard by witness.
In Simmons v. Sisson (23 N. Y., 264), it was held that the section in question did not prohibit a. party sued by the administrator, from testifying to a conversation heard by him, between the deceased and a third person;—that such hearing was not such a transaction between deceased, and the witness.
In Lobdell v. Lobdell (36 N. Y., 327), Justice Parker says: “ The transactions or communications respecting which the witness sought to testify, were not between himself and the deceased person, or, in the explict language of the statute, had personally by said party with the deceased person, but between the deceased and a third person. I am not able to see why he was not a competent witness to that transaction, or how with[477]*477oufc extending the limitation further than the statute has done, he should be excluded.”
I entertain no doubt, therefore, that so far as section 399 of the Code was concerned, the question propounded and excluded was competent.
But I am equally clear that the question was properly excluded as immaterial. The question at issue was, whether the witness was chargeable with the sum of $12,500, charged to him as an advance upon the books of the deceased, which he alleged was for stock that proved worthless, and that for that reason, he should not be charged with the amount. He also claimed that his expectation was, that he should be able to perfect his title to the Chicago property under a verbal agreement with his father, which induced him to offer to pay back $2,500, so as to reduce the advance to the amount charged to his sisters; but the question propounded makes no allusion to the worthless stock, or the charge by way of advancement, but asks as to a conversation between Mead and the testator, relating to the subject of the transfer of the Chicago property to the witness, by way of advancement, and if the question had been answered, I am not able to perceive how it could have affected the question of the witness’ liability for the advance charged in the books, and under the authorities above cited, it was immaterial whether the witness’ father knew the witness was present, or not.
I am of the opinion that the question was properly excluded, and the counsel for the executor failed to show its materiality to the auditor.
The report should be confirmed.
Order accordingly.