The Surrogate.
The first question is, whether the testimony of the witness Pollock was properly stricken out by the auditor.
Section 398, of the Code, abrogates the old common law rule, which excluded interested witnesses from testifying, and but for that section that rule would still prevail; but that section excepts from this radical and sweeping change,, certain cases provided in the next, the 399th section, among which "are that the [159]*159persons interested in the event of an action or proceeding, shall not be examined in regard to any personal transactions or communications between such witness and a person, at the time of such examination deceased, against a legatee, &c. In such a case it would seem logically to follow, that the same interest which excluded before section 398, now excludes in the excepted cases, for there is nothing in either of the sections to indicate a different intent or to define the kind of interest to disqualify.
As surety on the bond of the executor, the witness Pollock had a direct interest in the result of the proceedings, for the decree would be evidence against him on a suit on his bond. Willcox v. Smith, (26 Barb., 316).
But it is claimed by the counsel for the executor, that inasmuch as Pollock was called as a witness by the contestants, he became a competent witness in. the case, to testify to any facts pertinent to the issue, on examination in behalf of the executors, and the cases of Varick v. Jackson, (2 Wend., 201); and Fulton Bank v. Stafford, (Id., 483), are cited as authority for this proposition, but it should be observed that these cases were decided long prior to the code, under the rule of evidence which excluded the witness from being sworn in chief, in a case where he was interested, and when a party knowing the interest of a witness called him, he thereby in effect declared him to be a competent witness, and was estopped from alleging his incompetency on the ground of interest. But in this case under the different rule prescribed by the code, the [160]*160witness called by contestants was competent to testify to such matter as he was called to prove, but it would be very illogical to hold that because he had been called to give competent testimony, the party calling him had waived all right to object to his giving testimony in violation of a positive statute, and I am of the opinion that his testimony was liable to the objection raised by the statute, and that his having given it without objection before his suretyship was known, did not waive the right of the contestant to raise the objection, as soon as his interest was discovered, and that the motion to strike it out was in time, and properly granted by the auditor, because an objection taken to his being sworn as a witness would have been unavailing even if based upon the ground that he was interested, for it did not then appear that he was called for the purpose of proving a communication or transaction with the deceased.
The next question is, does the evidence not stricken out show a gift inter vivas ? The substance of the testimony is that about a year before his death the testator stated to his counsel, Van Winkle, that he wished to give Mrs. Miller something, and had put an envelope in the safe containing papers, which he wished to be given to her, but whether by the counsel or Mr. Pollock he could not say; that on the day of the death Mr. Pollock found the unsealed envelope lying on deceased’s trunk in his room, "from which room deceased had been removed two days before to the hospital, which envelope contained the mortgage, certificates of stock, and two notes above referred to, the envelope bearing the endorsement in the hand[161]*161writing of the deceased above stated, which envelope, with its contents, was delivered to Mrs. Miller. The evidence also tends to show that this woo the same envelope which had been placed in tho safe sealed, to which safe only the deceased and Pollock had access, and from which some of the papers had, by some person, presumably the deceased, been taken. The mortgage appears to have been cancelled, under the direction of Mrs. Miller, after the envelope and papers were delivered to her by Pollock; and a few days after testator’s death Mrs. Miller handed the package to Mr. Van Winkle, together with the bond which accompanied the mortgage,< and afti r about a week he returned the same to Mr. or Mrs. Miller, in the presence of both, saying that' deceased requested him to hand them to Mrs. Miller.
It is quite evident from the testimony that this latter delivery was not made in conformity to the suggestion of the deceased, about a year before made to Mr. Van Winkle, for it appears that there had been a pretended delivery thereof to Mrs. Miller by Mr. Pollock, and the custody which Mr. Van Winkle obtained of the papers, was from Mrs. Miller herself.
In the absence of Mr. Pollock’s testimony, relating to the interview between him and the deceased, there seems to be no evidence that any of the papers which were found- in the open envelope upon deceased’s trunk, on the day of his decease, were the papers intended by him to be delivered to Mrs. Miller. It only appears that the papers in question were found in this open envelope, which envelope bore the [162]*162direction, “for Jane Miller, of Patterson, New Jersey. David Reay.”
It is claimed that the delivery of the papers in question was complete when they were delivered to Mr. Pollock for the purpose of being delivered to Mrs. Miller by him, but the difficulty with the case seems to be that, in the absence of Mr. Pollock’s testimony, there is no evidence that they were ever delivered to him, the full extent of the testimony being that the testator stated to Mr. Van Winkle that there were papers in an envelope in the safe, which he desired either Mr. Van Winkle or Mr. Pollock to deliver to her, and there seems to be no evidence amounting to a delivery of the papers to either of those gentlemen, as agent or trustee of the alleged donee, within the case of Hunter v. Hunter (19 Barb., 631), and the fact that the envelope was found in the decedent’s room open, affords evidence that he was in possession of the securities in question at the time of his decease, and it is quite clear to my mind that Mr. Van Winkle had no such possession as divested the testator of either title or possession of said securities; indeed the envelope being open, and concededly not in the possession of Pollock, the alleged trustee for the donee, afforded such an opportunity for interference with, and charge of, the contents by interested or designing persons, that I should regard it very unsafe to hold such a transaction to be a valid gift. Such a transaction leaves the question involved in too great uncertainty to warrant the conclusion that the securities in question ever passed to the donee.
In the case of Hunter v. Hunter, above cited, the [163]*163learned judge (at p. 638) puts the fact of delivery upon the ground that the securities in that case were delivered to a third party to be kept for the donee, she being the agent and representative of the donor, and he says: “ The donor not only parted with the possession of the subject of the gift, but voluntarily gave up all dominion and control over it, so that he could not have resumed it, had he been so inclined. There is no proof that it ever returned to his possession, or that he ever attempted to exert any control over it.”
In Bedell v. Carll (33 N.
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The Surrogate.
The first question is, whether the testimony of the witness Pollock was properly stricken out by the auditor.
Section 398, of the Code, abrogates the old common law rule, which excluded interested witnesses from testifying, and but for that section that rule would still prevail; but that section excepts from this radical and sweeping change,, certain cases provided in the next, the 399th section, among which "are that the [159]*159persons interested in the event of an action or proceeding, shall not be examined in regard to any personal transactions or communications between such witness and a person, at the time of such examination deceased, against a legatee, &c. In such a case it would seem logically to follow, that the same interest which excluded before section 398, now excludes in the excepted cases, for there is nothing in either of the sections to indicate a different intent or to define the kind of interest to disqualify.
As surety on the bond of the executor, the witness Pollock had a direct interest in the result of the proceedings, for the decree would be evidence against him on a suit on his bond. Willcox v. Smith, (26 Barb., 316).
But it is claimed by the counsel for the executor, that inasmuch as Pollock was called as a witness by the contestants, he became a competent witness in. the case, to testify to any facts pertinent to the issue, on examination in behalf of the executors, and the cases of Varick v. Jackson, (2 Wend., 201); and Fulton Bank v. Stafford, (Id., 483), are cited as authority for this proposition, but it should be observed that these cases were decided long prior to the code, under the rule of evidence which excluded the witness from being sworn in chief, in a case where he was interested, and when a party knowing the interest of a witness called him, he thereby in effect declared him to be a competent witness, and was estopped from alleging his incompetency on the ground of interest. But in this case under the different rule prescribed by the code, the [160]*160witness called by contestants was competent to testify to such matter as he was called to prove, but it would be very illogical to hold that because he had been called to give competent testimony, the party calling him had waived all right to object to his giving testimony in violation of a positive statute, and I am of the opinion that his testimony was liable to the objection raised by the statute, and that his having given it without objection before his suretyship was known, did not waive the right of the contestant to raise the objection, as soon as his interest was discovered, and that the motion to strike it out was in time, and properly granted by the auditor, because an objection taken to his being sworn as a witness would have been unavailing even if based upon the ground that he was interested, for it did not then appear that he was called for the purpose of proving a communication or transaction with the deceased.
The next question is, does the evidence not stricken out show a gift inter vivas ? The substance of the testimony is that about a year before his death the testator stated to his counsel, Van Winkle, that he wished to give Mrs. Miller something, and had put an envelope in the safe containing papers, which he wished to be given to her, but whether by the counsel or Mr. Pollock he could not say; that on the day of the death Mr. Pollock found the unsealed envelope lying on deceased’s trunk in his room, "from which room deceased had been removed two days before to the hospital, which envelope contained the mortgage, certificates of stock, and two notes above referred to, the envelope bearing the endorsement in the hand[161]*161writing of the deceased above stated, which envelope, with its contents, was delivered to Mrs. Miller. The evidence also tends to show that this woo the same envelope which had been placed in tho safe sealed, to which safe only the deceased and Pollock had access, and from which some of the papers had, by some person, presumably the deceased, been taken. The mortgage appears to have been cancelled, under the direction of Mrs. Miller, after the envelope and papers were delivered to her by Pollock; and a few days after testator’s death Mrs. Miller handed the package to Mr. Van Winkle, together with the bond which accompanied the mortgage,< and afti r about a week he returned the same to Mr. or Mrs. Miller, in the presence of both, saying that' deceased requested him to hand them to Mrs. Miller.
It is quite evident from the testimony that this latter delivery was not made in conformity to the suggestion of the deceased, about a year before made to Mr. Van Winkle, for it appears that there had been a pretended delivery thereof to Mrs. Miller by Mr. Pollock, and the custody which Mr. Van Winkle obtained of the papers, was from Mrs. Miller herself.
In the absence of Mr. Pollock’s testimony, relating to the interview between him and the deceased, there seems to be no evidence that any of the papers which were found- in the open envelope upon deceased’s trunk, on the day of his decease, were the papers intended by him to be delivered to Mrs. Miller. It only appears that the papers in question were found in this open envelope, which envelope bore the [162]*162direction, “for Jane Miller, of Patterson, New Jersey. David Reay.”
It is claimed that the delivery of the papers in question was complete when they were delivered to Mr. Pollock for the purpose of being delivered to Mrs. Miller by him, but the difficulty with the case seems to be that, in the absence of Mr. Pollock’s testimony, there is no evidence that they were ever delivered to him, the full extent of the testimony being that the testator stated to Mr. Van Winkle that there were papers in an envelope in the safe, which he desired either Mr. Van Winkle or Mr. Pollock to deliver to her, and there seems to be no evidence amounting to a delivery of the papers to either of those gentlemen, as agent or trustee of the alleged donee, within the case of Hunter v. Hunter (19 Barb., 631), and the fact that the envelope was found in the decedent’s room open, affords evidence that he was in possession of the securities in question at the time of his decease, and it is quite clear to my mind that Mr. Van Winkle had no such possession as divested the testator of either title or possession of said securities; indeed the envelope being open, and concededly not in the possession of Pollock, the alleged trustee for the donee, afforded such an opportunity for interference with, and charge of, the contents by interested or designing persons, that I should regard it very unsafe to hold such a transaction to be a valid gift. Such a transaction leaves the question involved in too great uncertainty to warrant the conclusion that the securities in question ever passed to the donee.
In the case of Hunter v. Hunter, above cited, the [163]*163learned judge (at p. 638) puts the fact of delivery upon the ground that the securities in that case were delivered to a third party to be kept for the donee, she being the agent and representative of the donor, and he says: “ The donor not only parted with the possession of the subject of the gift, but voluntarily gave up all dominion and control over it, so that he could not have resumed it, had he been so inclined. There is no proof that it ever returned to his possession, or that he ever attempted to exert any control over it.”
In Bedell v. Carll (33 N. Y., 584), Wright, J., states that: “ A donation inter vivas differs from that of mortis causa, in that the title passes immediately to the donee on delivery, and the donor has no more right over the property than any other person, while the latter is conditional, to take effect on the death of the donor, who, in the meantime, has power of revocation, and may, at any time, resume possession and annul the gift.”
In Brink v. Gould (7 Lans., 425), Miller, J., cites several authorities to the same point, and there seems to be no question that a delivery of possession is required to make a gift valid, inter vivas, and that the donor must part with all interest in the subject of the gift unconditionally. Irish v. Nutting (47 Barb., 370).
The case of Hunter v. Hunter above cited only holds that the delivery to a third person for the use of the donee is sufficient, and the donee’s subsequent demand of the property is evidence of acceptance.
Having reached the conclusion that the testimony of Pollock was properly stricken out, and that that [164]*164which remains does not show a delivery of the possession and parting with the dominion of the securities in question, so as to constitute a valid gift, it follows that the auditor’s report must he confirmed, but it seems to me proper that I should also refer to the conclusions reached by the auditor that the securities in question were such as would not pass by delivery for the purposes of a gift inter vivas. In this conclusion I am of the opinion that the learned auditor is in error.
In Westerlo v. De Witt (36 N. Y., 340), Hunt, J., says: “It is clear, upon the authorities cited, that choses in action, such as bonds and mortgages, and promissory notes, not endorsed, may be well transferred by delivery only, as a donatio causa mortis. As in a case of a gift inter vivas, the transfer of such security would be accompanied with some inconvenience, more and different evidence would be required in enforcing the claim than where a specific chattel had been delivered, or an endorsement, or the formal written transfer, of the securities had been made. Still it is quite clear that in either case, in apprehension of death, or among the living, the gift of a mortgage, or an endorsed (unendorsed) note, may be effected by simple delivery of the security.” And this authority is cited with approbation in Gray v. Barton (55 N. Y., 72).
In Mack v. Mack (3 Hun., 323,) it was held that a gift from a husband to his wife, of judgments and mortgages, need not be accompanied by a written assignment, and (at the close of page 325), Landon, * J., says: “The objection that the judgments and [165]*165mortgages were not assigned in writing, we think not well taken,” to which he cites several authorities.
In Hackney v. Vrooman (62 Barb., 650), Mullin, J., in his opinion (page 668) discusses this question upon the authorities, and, (at page 670), uses this language: “It seems to me that whether the gift be inter vivas or causa mortis, a donee acquires a legal, as well as equitable, title to the bond and mortgage, which are the subject of the gift, by mere delivery without writing.”
Upon these authorities, I entertain no doubt that the gift of the securities in question, if consummated by requisite delivery, would have been valid, without an endorsement of the notes, or an assignment of the mortgage. For the reasons above stated, the auditor’s report should be confirmed.
Order accordingly.