Adams, J.:
The plaintiff brings this action to recover the value of seven notes amounting in the aggregate to $2,638.98, and interest thereon,, together with a roan cow of the value of $30, which she claims to own by gift from her uncle, the defendant’s testator, Sylvester Eix.
The action was tried before a referee, who found that the notes and cow were the property of the plaintiff'; that they were given to her by the testator prior to his death, and that they were taken from her possession by the defendant, as executor of the last will and tes[542] tament of Sylvester Bix, upon the claim that they were the property of the estate which he represented.
The contest before the learned referee was confined mainly to the plaintiff’s right to the notes in suit, little or no evidence being given relative to the cowl; and the principal argument addressed to this court upon the part of the defendant, is .that the evidence was insufficient to sustain the referee in finding that the notes were delivered to the plaintiff by Sylvester Bix during his lifetime, under such circumstances and conditions as to establish a valid gift of the same within the well-established rules applicable to cases of this character.
The essential question, therefore, which we are called upon to review, resolves itself into one of fact, and imposes upon this court the duty of examining with care, alnd some degree of minuteness, the evidence which bears either directly or remotely upon the plaintiff’s title to these notes. From such an examination of the record, furnished us, we find the following facts established beyond all controversy, viz.: .
That the testator’ was the owner, during his lifetime, of a farm consisting of 160 acres, situate in the town of Springwater, Livingston county, in this. State, upon which he resided up to the time of his death, which occurred about the 9th day of December, 1892.. He was a bachelor and about eighty-two years of age, his nearest relative being a brother, Lewis.Bix, who was the father of the plaintiff, and who died in December, 1893, at the age of about ninety years, leaving the plaintiff, four other children and two grandchildren, his Only heirs at law and next of kin, all of his own children being married, except the plaintiff; and these children and grandchildren, together with one other nephew, the son of a deceased sister, constitute the present heirs at law and next of kin of the testator.
Some nine years.prior to the death of Sylvester Bix the plaintiff, at the request of her uncle, came to live with him upon his farm, where she continued to reside until the latter’s death. During all of this: time she cared for her uncle, performing the necessary housework, as well as considerable work upon the farm, such as milking the cows, feeding the pigs, gardening and assisting in the haying. She also assisted in nursing and caring for her uncle when he was sick. . During the same period of time, the plaintiff’s [543] brother, Clark Bix, worked his uncle’s farm on shares. He did not, however, live upon the premises until the spring of 1891, when he moved into his uncle’s house, where he remained until the death of Sylvester Bix.
In April, 1890, the testator executed to the plaintiff and her brother a deed of his farm, which was worth at that time about $4,000. He retained this deed in his possession until some three or four days prior to his death, when he delivered it to Clark Bix.
Clark Bix being sworn as a witness in behalf of the plaintiff, testified that early one morning in May, 1891, while his uncle was suffering from an attack of pneumonia, the latter called him and his sister into his room, saying that he desired to talle with- them respecting the property he intended to give them. In this conversation he said that the roan cow was the plaintiff’s and that he wanted her to have four of the notes in suit, specifically mentioning the same. The witness further testified that he then said to him, “ Uncle, I do not think we can hold that property; ” and that his uncle replied, “ You can, because you will-have possession of it.” It does not appear, however, that at this time there was any manual delivery of the notes, but among those which Clark Bix says were mentioned by his uncle was one of $1,000, made by Alfred Leach; and Mrs. Leach testifies that in July, 1891, she went to the testator’s house for the purpose of paying interest upon that note, at which time she was informed by the testator that he could not receive the interest because the plaintiff had the note; that it was hers, and that she was not in; but that when she returned- he would fetch it over; and that the following morning he did bring the note to 'Mrs. Leach’s house, when she paid him the interest thereon. Again, in July, 1892, Mrs. Leach went to the testator’s house for a like purpose, when the plaintiff, at the request of her uncle, went into another room and brought out a pocket book containing the Leach note, upon which Mrs. Leach paid a year’s interest, Clark Bix drawing a receipt therefor, which the testator signed.
Another witness by the name of William JBarher, who was a nephew of the testator, testified that in October, 1892, his uncle said to him that he “ hadn’t money enough or property enough to pay her (the plaintiff) for what she had done.” And that, at another time, he said to him that the plaintiff “ had done well for him ; and [544] if money would pay her,» she had got her pay.” And, at about the same time, he stated to Clark Bix that he had given the plaintiff some more of the notes.
It is also made to appear that Sylvester Bix, during all the time that the plaintiff lived at his house, with the exception of a few days immediately preceding his death, slept in and occupied a bedroom off from and east of the sitting room ; that he kept his notes and securities in a tin box under the head of his bed, and that, during a portion of this timé at least, the plaintiff had the notes in suit in'a large pocket book, which she kept in her trunk in the parlor, north of the sitting room. Clark Bix further testifies that in November, 1892, one James Bobinson came to his uncle’s house to see a note upon which. His father was liable as maker; that the witness stated to his uncle that Bobinson was there and his object in coming; that his uncle then remarked: “Wliat notes I’ve got you’ll find in that box —little trunk that the witness thereupon took the notes out of the box, laid them upon the bed, picked out the Bobinson note and allowed Bobinson to look at it, after which it was returned to the envelope from which it was taken,.and the tin box was set back under the bed. He further testifies that he examined carefully all the notes in the box at that time, and that none of the seven notes claimed by the plaintiff to have been given her by her uncle was among them. This witness further testifies that a few days prior to his uncle’s death the latter spoke to him in regard to thirty "dollars which he said had been paid upon the "Marvin note, adding that the plaintiff had the note, and that the indorsement ought to be made thereon. He also at the same time spoke of the Van Dorn note, stating that some groceries which hadj been obtained the winter previous should be indorsed on that note, both of the notes referred to being among " those claimed by the plaintiff.
On December 4, 1892, the testator executed his last will and testament, in and by which. he gave and bequeathed to his brother, Lewis Bix, all of his personal property of every description..
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Adams, J.:
The plaintiff brings this action to recover the value of seven notes amounting in the aggregate to $2,638.98, and interest thereon,, together with a roan cow of the value of $30, which she claims to own by gift from her uncle, the defendant’s testator, Sylvester Eix.
The action was tried before a referee, who found that the notes and cow were the property of the plaintiff'; that they were given to her by the testator prior to his death, and that they were taken from her possession by the defendant, as executor of the last will and tes[542] tament of Sylvester Bix, upon the claim that they were the property of the estate which he represented.
The contest before the learned referee was confined mainly to the plaintiff’s right to the notes in suit, little or no evidence being given relative to the cowl; and the principal argument addressed to this court upon the part of the defendant, is .that the evidence was insufficient to sustain the referee in finding that the notes were delivered to the plaintiff by Sylvester Bix during his lifetime, under such circumstances and conditions as to establish a valid gift of the same within the well-established rules applicable to cases of this character.
The essential question, therefore, which we are called upon to review, resolves itself into one of fact, and imposes upon this court the duty of examining with care, alnd some degree of minuteness, the evidence which bears either directly or remotely upon the plaintiff’s title to these notes. From such an examination of the record, furnished us, we find the following facts established beyond all controversy, viz.: .
That the testator’ was the owner, during his lifetime, of a farm consisting of 160 acres, situate in the town of Springwater, Livingston county, in this. State, upon which he resided up to the time of his death, which occurred about the 9th day of December, 1892.. He was a bachelor and about eighty-two years of age, his nearest relative being a brother, Lewis.Bix, who was the father of the plaintiff, and who died in December, 1893, at the age of about ninety years, leaving the plaintiff, four other children and two grandchildren, his Only heirs at law and next of kin, all of his own children being married, except the plaintiff; and these children and grandchildren, together with one other nephew, the son of a deceased sister, constitute the present heirs at law and next of kin of the testator.
Some nine years.prior to the death of Sylvester Bix the plaintiff, at the request of her uncle, came to live with him upon his farm, where she continued to reside until the latter’s death. During all of this: time she cared for her uncle, performing the necessary housework, as well as considerable work upon the farm, such as milking the cows, feeding the pigs, gardening and assisting in the haying. She also assisted in nursing and caring for her uncle when he was sick. . During the same period of time, the plaintiff’s [543] brother, Clark Bix, worked his uncle’s farm on shares. He did not, however, live upon the premises until the spring of 1891, when he moved into his uncle’s house, where he remained until the death of Sylvester Bix.
In April, 1890, the testator executed to the plaintiff and her brother a deed of his farm, which was worth at that time about $4,000. He retained this deed in his possession until some three or four days prior to his death, when he delivered it to Clark Bix.
Clark Bix being sworn as a witness in behalf of the plaintiff, testified that early one morning in May, 1891, while his uncle was suffering from an attack of pneumonia, the latter called him and his sister into his room, saying that he desired to talle with- them respecting the property he intended to give them. In this conversation he said that the roan cow was the plaintiff’s and that he wanted her to have four of the notes in suit, specifically mentioning the same. The witness further testified that he then said to him, “ Uncle, I do not think we can hold that property; ” and that his uncle replied, “ You can, because you will-have possession of it.” It does not appear, however, that at this time there was any manual delivery of the notes, but among those which Clark Bix says were mentioned by his uncle was one of $1,000, made by Alfred Leach; and Mrs. Leach testifies that in July, 1891, she went to the testator’s house for the purpose of paying interest upon that note, at which time she was informed by the testator that he could not receive the interest because the plaintiff had the note; that it was hers, and that she was not in; but that when she returned- he would fetch it over; and that the following morning he did bring the note to 'Mrs. Leach’s house, when she paid him the interest thereon. Again, in July, 1892, Mrs. Leach went to the testator’s house for a like purpose, when the plaintiff, at the request of her uncle, went into another room and brought out a pocket book containing the Leach note, upon which Mrs. Leach paid a year’s interest, Clark Bix drawing a receipt therefor, which the testator signed.
Another witness by the name of William JBarher, who was a nephew of the testator, testified that in October, 1892, his uncle said to him that he “ hadn’t money enough or property enough to pay her (the plaintiff) for what she had done.” And that, at another time, he said to him that the plaintiff “ had done well for him ; and [544] if money would pay her,» she had got her pay.” And, at about the same time, he stated to Clark Bix that he had given the plaintiff some more of the notes.
It is also made to appear that Sylvester Bix, during all the time that the plaintiff lived at his house, with the exception of a few days immediately preceding his death, slept in and occupied a bedroom off from and east of the sitting room ; that he kept his notes and securities in a tin box under the head of his bed, and that, during a portion of this timé at least, the plaintiff had the notes in suit in'a large pocket book, which she kept in her trunk in the parlor, north of the sitting room. Clark Bix further testifies that in November, 1892, one James Bobinson came to his uncle’s house to see a note upon which. His father was liable as maker; that the witness stated to his uncle that Bobinson was there and his object in coming; that his uncle then remarked: “Wliat notes I’ve got you’ll find in that box —little trunk that the witness thereupon took the notes out of the box, laid them upon the bed, picked out the Bobinson note and allowed Bobinson to look at it, after which it was returned to the envelope from which it was taken,.and the tin box was set back under the bed. He further testifies that he examined carefully all the notes in the box at that time, and that none of the seven notes claimed by the plaintiff to have been given her by her uncle was among them. This witness further testifies that a few days prior to his uncle’s death the latter spoke to him in regard to thirty "dollars which he said had been paid upon the "Marvin note, adding that the plaintiff had the note, and that the indorsement ought to be made thereon. He also at the same time spoke of the Van Dorn note, stating that some groceries which hadj been obtained the winter previous should be indorsed on that note, both of the notes referred to being among " those claimed by the plaintiff.
On December 4, 1892, the testator executed his last will and testament, in and by which. he gave and bequeathed to his brother, Lewis Bix, all of his personal property of every description..
It appears that at the time of the death of - the testator all the notes in question were in the possession of the plaintiff, and that there " was considerable other personal property which passed to Lewis Bix tinder his brother’s will. ■
The evidence which has thus far been detailed was furnished [545] mainly by witnesses sworn in behalf of the plaintiff, to meet which a number of witnesses were called for the defense, who testified to admissions and declarations which they claimed to have heard the plaintiff make at various times, which were somewhat contradictory of her evidence, and were to the effect that she did not have the notes in her possession, and had not received the interest on them as hers. The admissions and declarations thus detailed were, however, denied by the plaintiff when she was called to the stand to give evidence in rebuttal, and it will be. readily seen that the learned referee was consequently forced to ascertain and determine the truth of this controversy upon evidence which was conflicting in its character, and which demanded the exercise on his part of good judgment and careful analysis, in order to determine its preponderating weight and value.
In' cases of this nature, where claims are presented against a deceased party, it is unquestionably well settled, by repeated adjudications, that the same should be scrutinized with even more than ordinary care in order to prevent, as far as possible, the allowance of unjust and fictitious demands against parties whose mouths are sealed by death. With -this rule for our guide, in the case under consideration, and with the application of the closest scrutiny to the evidence contained in the record, we are, nevertheless, of the opinion that it is ample to sustain the findings of fact and conclusions of law adopted by the learned referee.
In saying this we assume that whatever title the plaintiff has to the property over which this controversy arises depends upon her establishing a valid gift thereof from the donor, her uncle, and to accomplish this, the gift being one inter vivos, there must be present five distinct elements in order to invest it with the quality of validity. These elements are: “ First, that the donor must be competent to contract; second, there must he freedom of will; third, the gift must be complete, with nothing left undone; fourth, the property must be delivered by the donor and accepted by the donee; and fifth,, the gift must go into immediate and absolute effect.” (Mercantile S. Deposit Co. v. Huntington, 89 Hun, 465, 469.)
There is no pretense that the donor was at any time incompetent to execute a valid gift of his property, neither is it claimed that the [546] ■notes in suit were obtained by any coercive domination of his will power - by the donee; but, as we understand the defendant’s position, it is insisted that the gift was not completé, in that it did not "go into immediate and absolute effect by actual delivery, and this contention brings us back to a consideration of the proper value which may attach to the evidence furnished by the plaintiff in support of her claim.
The defendant is undoubtedly correct in saying that there is no 'direct and positive* proof of the delivery of the property in question, -■ for, as has already been suggested, it is not claimed that the notes were handed over,, or even that they were present at the early morn-ing interview in May, 1891, but it does appear by evidence, which ■’was satisfactory to. the referee, that soon thereafter they were found in the possession of the plaintiff, who retained them as the ostensible owner, with the knowledge of her uncle, down to the time of his 'death.
This circumstance, of itself, is substantial evidence of delivery (M. S. D. Co. v. Huntington, supra), and when accompanied by ■.acts and declarations upon the part of the donor, together with ' other circumstances, all tending in the same direction, it certainly was sufficient to create a presumption in favor of the validity of the gift which, until overcome by satisfactory proof, afforded adequate ■justification -for the. inference that the same had been completed in every essential particular. (Grangiac v. Arden, 10 Johns. 293; Babcock v. Benson, 11 N. Y. Supp. 455 ; Hoffman v. Hoffman, 6 App. Div. 84; Bedell v. Carll, 33 N. Y. 581; Trow v. Shannon, 78 id. 446.)
But this prvtna facie evidence of the delivery and completion of ■the gift found abundant support and strength in other circumstances and inferences with which the case abounds.
In the first place the gift was not an unnatural act upon the part" of the donor, but, upon the contrary, was just what might have been expected of a just and generous person in the same circum- ■ "stances. With the exception of a brother, whose decease was in all probability but a question of a year or two at most, the plaintiff " was as nearly related to Sylvester Rix as any living being. She had come to him in his old age and had served him faithfully for nearly ten years. There is no evidence that she ever received any com[547] pensation for the services thus rendered other than a half interest in the homestead, and the cow and notes in suit. ■ All the other . nephews and nieces of the donor were married and living by themselves, and no reason is furnished other than that of kinship, why they should share in the testator’s bounty. Whatever claim they had growing out of this relationship had been recognized by the provision in the testator’s will in favor of their father, and they ought to be slow of interference with the disposition made by their uncle of the remainder of his property, especially as that disposition was obviously prompted by a just desire to discharge an obligation which rested upon him, and which he had repeatedly recognized and declared his intention of fulfilling.
Having reached this conclusion in respect of the principal question brought to our notice upon this appeal, it only remains to consider one or two exceptions to the admission of evidence upon the trial.
Among the witnesses called by the defendant was Arnold Kirkendall, who testified that in February, 1893, he heard the plaintiff tell one Mark Rix that she had never had these notes in her possession and had never received any interest on 'them as hers. The plaintiff, upon being recalled to the stand, after denying the making of such statement, was asked where the notes were at the time of the interview, between her and Mark Rix—-it.being conceded that he was at her house upon one occasion, in company with Kirkendall. This question was objected to on the ground that it was incompetent, under section 829 of the Code of Civil Procédufe. The objection was overruled and the plaintiff answered that they were in her trunk and that her trunk was in her bedroom, A motion was thereupon made' to strike out the answer upon the ground already stated, which was denied, and the defendant’s counsel duly excepted to both the admission of the evidence and to the refusal to strike out the same.
These exceptions, we are persuaded, present no error, We are unable to see how the evidence objected to can be regarded as in the nature of a transaction between the plaintiff and her uncle, inasmuch as it related to her possession of the notes in suit some two months subsequent to the death of the latter. But, however this may be, it was certainly admissible for the purpose of corroborating [548] her denial of the ¡admission which she was said to have made to Mark Eix, for if she had the notes in her trunk at that very time, it is hardly conceivable that she would be declaring that she had never had possession of them.
When Clark Eix was called to the stand as a witness for the plaintiff, he wras subjected to a preliminary examination by the defend-, ant’s counsel, during wThich he stated that he had a law suit pending with the defendant growing out of a claim made by him to certain personal property Which was upon his uncle’s premises' at the time ■ of his decease, and: that he had said to the defendant he had been advised by counsel that if the plaintiff, won this action he could win his. The defendant’s counsel thereupon objected to this witness giving any evidence of personal transactions with the decedent, upon the ground that he was interested in the event of the action, and that his evidence was, therefore, incompetent under section 829 of the Code of Civil Procedure. . /
It' is, of course, conceded that the witness was in no sense a party to this action, and consequently, if disqualified from- testifying in behalf- of the plaintiff, it must have been by reason of his interest in its event. It becomes important, therefore, to refer to the section of the Code which is invoked in support of the defendant’s contention, in order to determine how far it sustains him therein. Its language, so far as applicable to this particular case, is as follows: “Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or person interested.in the event, or a person from, through or under whom such a party or interested person derives his interest ¡or title, by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person.”
And it would seem to follow that this witness was not disqualified unless he was not only interested in the event of the action, but was also examined in his own behalf or interest.
It is probably undeniable that the witness was, in a. sense, interested in the event of the action, and, if he believed what he had stated to the defendant, he was, perhaps, in the same sense, examined in his own behalf; but this is not the sense in which the word “ iúterest ” is used in this section.
[549] . The test of interest which disqualifies a witness not a party, under this section, is thus stated by Mr. Greenléaf in his work upon Evidence : “ The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent.” (1 Greenl. on Ev. § 390.)
And this test has been frequently recognized and adopted by the courts of this State. (Hobart v. Hobart, 62 N. Y. 80; Nearpass v. Gilman, 104 id. 506 ; Wallace v. Straus, 113 id. 238; Allis v. Stafford, 14 Hun, 418; Ely v. Onte, 19 Hun, 35.)
Certainly the interest of Clark Eix, in the event of this action, was, by no means, present and certain. It was altogether uncertain, remote and contingent, and any judgment which might be rendered herein could not be used as evidence in his action. However much he may have relied upon the advice which he says had been given, and however much he may have been influenced by such advice in giving his testimony, he was not interested in the sense in which that word is used in the section adverted to. And whatever interest he did have did not appear to prejudice him in the opinion of the learned referee, who takes occasion to say that he impressed him as a very candid witness, whose testimony was consistent with itself.
We find no other exception in the case which seems to demand any attention, and our conclusion upon the whole case is that the judgment appealed from should be affirmed.'
Hardin, P, J., and Ward, J., concurred; Follett and Green, JJ., dissented.