O’Brien, J.
Nathaniel P. Bogers died on the 22d of April, 1892, leaving a will whicli bears date on December 26, 1885. His three sons were appointed executors of the will, and two of them, as such executors, brought this action against the other son, individually, and his former partner, to recover money loaned and advanced by the father in his lifetime to the firm which was composed of the two defendants. The amount claimed to be due from the defendants to the estate of the deceased was $50,000.
The defendants answered separately and both admitted the loan of money to them in some form and in some amount by the deceased in his lifetime. The defendant Nathaniel P. Bogers, Jr., interposed two separate affirmative defenses : (1) The Statute of Limitations; (2) the thirteenth clause of his father’s will, which reads as follows:
“
I direct that no deduction shall be made from the share of any of my children by reason of any sums which I have heretofore given or advanced to or foiv account of either of them.” It was claimed that this clause released him from all liability upon the loans. The defendant Maguire, the other partner, interposed as an affirma
tive defense that the notes, representing the loan, were, during-the lifetime of the deceased, transferred and delivered hy him to his son, the defendant, as a gift.
On the trial it appeared that the largest portion of the debt was barred hy the Statute of Limitations. But the court found that the deceased loaned to the firm the following sums, which were unpaid: $1,000, April 12,1889 ; $3,000, May 25, 1889 ; $4,000, December 19,1890 ; $6,000, January 20, 1891: each loan payable on demand. That as security for the payment of the two sums first above mentioned, the firm transferred to the deceased a real estate mortgage for $2,971, which the estate held and was worth its face.
The court directed judgment for these several sums of money, with interest from the date of the loan ; and, further, that upon payment of the sums for which the mortgage was held as security, the plaintiffs should assign the same to the defendants. The defendant Maguire has never appealed from the judgment, but the other defendant has. There was no request made at the trial in behalf of the defendant Rogers to find any fact or conclusion of law claimed to arise out of the affirmative defense, and no exception Avas filed to any specific finding, although a general exception was taken to the Avhole decision.
The defendant Rogers did not claim in his ansAver that any of the loans had been paid or that any note representing such loans had been transferred to him by way of gift
inter vivos
by his father. Aside from the Statute of Limitations, his defense AA'as that he had been released by the provisions of the will. That is the only defense, therefore, that need be considered, and that is urged upon the principle that the Avill spoke as of the date of the testator’s death. That is, no doubt, the general mle, but it is not of universal application. Whenever the testaior refers to an actually existing state of things his language should he understood as referring to the date of the will and not to his death. (
Wetmore
v. Parker, 52 N. Y. 450;
Canfield
v.
Bostwick,
21 Conn. 550;
Van Kleeck
v.
Dutch
Church, 20 Wend. 457;
Cole
v. Scott, 16 Sim. 259.)
The provision in the will which referred to money
“
hereto~
fore given or advanced?
applied only to such gifts or advancements as had been made prior to the date of the instrument. Moreover, it referred to sums “
given or ad/ocmced?
•and these words do not refer to actual loans made subsequent to the date of the will for which the testator took promissory notes. Furthermore, the words cannot be construed, as referring to subsequent loans so made, not to the child himself, but to a business firm of which he happened to be a member, and for which the testator not only took the firm note but other collateral security.
(Van Alstyne
v.
Van
Alstyne, 28 N. Y. 375.)
The only other question of law arises upon an exception taken at the trial in behalf of the defendant Rogers, who was sworn as a witness in his own behalf, and testified, in substance, that his father, in his lifetime, delivered to him as a gift a note of
$10,000,
representing the last two loans above mentioned, with a policy of insurance upon the life of his partner Maguire, given as collateral security for the payment of the note. He produced these papers at the trial, and the insurance policy was given in evidence by the plaintiff, though the note was not. This testimony was objected to by the plaintiffs’ counsel as incompetent under § 829 of the Code as ■a personal transaction between the witness, a party defendant, and his father, a deceased person, represented by the plaintiffs.
The court reserved his ruling upon the question till after the close of the trial and then struck out the testimony, sustaining the objection, and the defendant’s counsel took an exception. The question having been reserved for consideration without any objection from either party, the court had the right to decide it after the close of the proofs. The defendant could have insisted upon a ruling before the close of the case, or even at the time the testimony was offered. But having virtually consented that the court might rule upon the question after the trial, he is not now in a position to raise any question as to the time and manner of the decision of the question.
It is quite clear that the testimony was open to the objection
made. It was the testimony of a party, concerning a personal transaction with the deceased, against his executors, and thus came within the plain prohibition of the section. The only ground upon which the final ruling of the court is now questioned is that the plaintiffs themselves gave testimony which rendered it competent, or, as the learned counsel for the defendant expresses it, opened the door for its admission.
Before dealing with this claim it may be well to inquire how the case would now stand if the ruling had been the other way, and the testimony had remained in the case. We have seen that the defendant set up no such defense as a transfer to him of the notes through an executed gift, though Maguire did. The defendant Rogers, therefore, was not attempting to ¡Drove, by the testimony which was excluded, any defense which he had himself pleaded, but a defense which his partner Maguire'had interposed. The partner took no exception to the ruling excluding the testimony, and has not even appealed from the judgment. It is somewhat difficult to see how Rogers can claim to have been injured by the ruling, whether it was right or wrong.
Moreover, the most that he could claim for this testimony is that it tended to establish a fact which he had not pleaded, namely, a gift of the securities. ITe did not ask the court to-find any such fact, and it cannot be said, as matter of law, that the court was bound to find it upon the testimony of an interested witness. The fact that the defendant had the note in his possession was of little consequence.
Free access — add to your briefcase to read the full text and ask questions with AI
O’Brien, J.
Nathaniel P. Bogers died on the 22d of April, 1892, leaving a will whicli bears date on December 26, 1885. His three sons were appointed executors of the will, and two of them, as such executors, brought this action against the other son, individually, and his former partner, to recover money loaned and advanced by the father in his lifetime to the firm which was composed of the two defendants. The amount claimed to be due from the defendants to the estate of the deceased was $50,000.
The defendants answered separately and both admitted the loan of money to them in some form and in some amount by the deceased in his lifetime. The defendant Nathaniel P. Bogers, Jr., interposed two separate affirmative defenses : (1) The Statute of Limitations; (2) the thirteenth clause of his father’s will, which reads as follows:
“
I direct that no deduction shall be made from the share of any of my children by reason of any sums which I have heretofore given or advanced to or foiv account of either of them.” It was claimed that this clause released him from all liability upon the loans. The defendant Maguire, the other partner, interposed as an affirma
tive defense that the notes, representing the loan, were, during-the lifetime of the deceased, transferred and delivered hy him to his son, the defendant, as a gift.
On the trial it appeared that the largest portion of the debt was barred hy the Statute of Limitations. But the court found that the deceased loaned to the firm the following sums, which were unpaid: $1,000, April 12,1889 ; $3,000, May 25, 1889 ; $4,000, December 19,1890 ; $6,000, January 20, 1891: each loan payable on demand. That as security for the payment of the two sums first above mentioned, the firm transferred to the deceased a real estate mortgage for $2,971, which the estate held and was worth its face.
The court directed judgment for these several sums of money, with interest from the date of the loan ; and, further, that upon payment of the sums for which the mortgage was held as security, the plaintiffs should assign the same to the defendants. The defendant Maguire has never appealed from the judgment, but the other defendant has. There was no request made at the trial in behalf of the defendant Rogers to find any fact or conclusion of law claimed to arise out of the affirmative defense, and no exception Avas filed to any specific finding, although a general exception was taken to the Avhole decision.
The defendant Rogers did not claim in his ansAver that any of the loans had been paid or that any note representing such loans had been transferred to him by way of gift
inter vivos
by his father. Aside from the Statute of Limitations, his defense AA'as that he had been released by the provisions of the will. That is the only defense, therefore, that need be considered, and that is urged upon the principle that the Avill spoke as of the date of the testator’s death. That is, no doubt, the general mle, but it is not of universal application. Whenever the testaior refers to an actually existing state of things his language should he understood as referring to the date of the will and not to his death. (
Wetmore
v. Parker, 52 N. Y. 450;
Canfield
v.
Bostwick,
21 Conn. 550;
Van Kleeck
v.
Dutch
Church, 20 Wend. 457;
Cole
v. Scott, 16 Sim. 259.)
The provision in the will which referred to money
“
hereto~
fore given or advanced?
applied only to such gifts or advancements as had been made prior to the date of the instrument. Moreover, it referred to sums “
given or ad/ocmced?
•and these words do not refer to actual loans made subsequent to the date of the will for which the testator took promissory notes. Furthermore, the words cannot be construed, as referring to subsequent loans so made, not to the child himself, but to a business firm of which he happened to be a member, and for which the testator not only took the firm note but other collateral security.
(Van Alstyne
v.
Van
Alstyne, 28 N. Y. 375.)
The only other question of law arises upon an exception taken at the trial in behalf of the defendant Rogers, who was sworn as a witness in his own behalf, and testified, in substance, that his father, in his lifetime, delivered to him as a gift a note of
$10,000,
representing the last two loans above mentioned, with a policy of insurance upon the life of his partner Maguire, given as collateral security for the payment of the note. He produced these papers at the trial, and the insurance policy was given in evidence by the plaintiff, though the note was not. This testimony was objected to by the plaintiffs’ counsel as incompetent under § 829 of the Code as ■a personal transaction between the witness, a party defendant, and his father, a deceased person, represented by the plaintiffs.
The court reserved his ruling upon the question till after the close of the trial and then struck out the testimony, sustaining the objection, and the defendant’s counsel took an exception. The question having been reserved for consideration without any objection from either party, the court had the right to decide it after the close of the proofs. The defendant could have insisted upon a ruling before the close of the case, or even at the time the testimony was offered. But having virtually consented that the court might rule upon the question after the trial, he is not now in a position to raise any question as to the time and manner of the decision of the question.
It is quite clear that the testimony was open to the objection
made. It was the testimony of a party, concerning a personal transaction with the deceased, against his executors, and thus came within the plain prohibition of the section. The only ground upon which the final ruling of the court is now questioned is that the plaintiffs themselves gave testimony which rendered it competent, or, as the learned counsel for the defendant expresses it, opened the door for its admission.
Before dealing with this claim it may be well to inquire how the case would now stand if the ruling had been the other way, and the testimony had remained in the case. We have seen that the defendant set up no such defense as a transfer to him of the notes through an executed gift, though Maguire did. The defendant Rogers, therefore, was not attempting to ¡Drove, by the testimony which was excluded, any defense which he had himself pleaded, but a defense which his partner Maguire'had interposed. The partner took no exception to the ruling excluding the testimony, and has not even appealed from the judgment. It is somewhat difficult to see how Rogers can claim to have been injured by the ruling, whether it was right or wrong.
Moreover, the most that he could claim for this testimony is that it tended to establish a fact which he had not pleaded, namely, a gift of the securities. ITe did not ask the court to-find any such fact, and it cannot be said, as matter of law, that the court was bound to find it upon the testimony of an interested witness. The fact that the defendant had the note in his possession was of little consequence. He was one of the executors of his father, and had the same right and recourse to the papers of the estate, so far as appears, as the other executors. There was no defense of payment and no claim that the loan had been paid, but, on the contrary, it was claimed on all sides that it had not, and there was no presumption of a gift.
(Grey
v. Grey, 47 N. Y. 552.)
Apart from all this, the testimony of the witness was not free from suspicion, and there were some inconsistencies in it which might well justify its rejection. Hot the least of these is the fact that long after it is claimed that the father gave-
the note to the son, we find the former talcing from Maguire a policy of insurance as security for its payment. If the father had made a gift of the note to the defendant it is not apparent why he was afterwards concerned in taking security for its payment. So that if the ruling of the court had been the other way, and the same judgment had been rendered, the defendant would have no ground for a reversal.
But it is quite clear that the ruling of the court excluding the testimony was entirely correct. The plaintiffs gave no proof whatever that opened the door for its admission.
The rule is that where an executor, who is a plaintiff, testifies in his own behalf to a personal transaction between the deceased and the defendant, then the defendant becomes a competent witness in his own behalf with respect to the
same transaction,
but not other or different transactions.
(Martin
v.
Hillen,
142 N.
Y.
140 ;
McLaughlin
v.
Webster,
141 N. Y. 76.)
Row, the defendant’s testimony related to an alleged gift by the deceased of the §10,000 note and policy of insurance at sometime after they came to the hands of the deceased and had a legal inception as obligations of the firm. It related to nothing else, and hence was a separate, distinct and well-defined personal transaction between himself and the deceased. The learned counsel for the defendant claims that it was admissible for these reasons :
1. One of the plaintiffs, the defendant’s brother and co-executor, was sworn in behalf of the plaintiffs and testified generally that
he lenew
that his father had made loans to the firm. The witness did not testify to any personal transaction whatever between his father and the firm, or any member of it. He simply testified to what he knew without even stating how he became possessed of the knowledge. He may have acquired that by hearsay either from the father or defendant. The witness simply testified to the condition of his own mind •and not to any fact whatever. What, in common parlance, is called knowledge, comes to the mind in various ways, but ■does not necessarily imply a personal transaction or communi
cation. Had the question which called for such an answer been objected to, it ought and would probably have been excluded since it called for no fact.
But even if this witness had sworn that he was present when Maguire delivered the $10,000 note to his father, that would not have been a personal transaction between the defendant and the deceased, and most clearly it would not be
the
personal transaction which the defendant testified to. What he attempted to prove was not any transaction in regard to the execution or delivery of the notes, or their validity or consideration, but a gift of one of them subsequently to himself by the deceased. It is not claimed that any one had introduced that subject before or had given proof of any fact bearing upon it in the slightest degree. The defendant made no question whatever as to delivery and consideration of the firm notes. What he swore to was that, being valid existing obligations of the firm, he became the owner of them by gift from his father. His brother certainly did not open the door to the admission of such testimony by simply saying that he
knew
his father had made loans to the firm.
2. But the plaintiffs also swore Maguire, the copartner, as to the loans and the delivery of the $10,000 note of the firm and the policy of insurance on his own life. The plaintiffs took the risk of attempting to prove their case by one of the defendants, who, presumptively, Avas a hostile witness, but that was all. They took no other risk. He Avas a competent witness and -they had the right to call him, and by calling him they did not make the other defendant competent to testify against them. If the plaintiffs elected to prove their case by an adverse party, instead of a stranger, they could do so. The defendant had the right to cross-examine him as to any personal transaction with the deceased that he testified to and as to any other feature of his testimony. His counsel availed himself fully of that right and proved many things by him that tended to reduce the plaintiffs’ claim. But the plaintiffs, by taking all the risks of adverse testimony from Maguire, did not open the door for the other defendant.
(Nay
v.
Curley,
113
N. Y. 575.) They did not call
Mm,
and so far as he was concerned the prohibition of § 829 was not removed. Moreover, neither Maguire nor any one else made any reference in thé testimony to a transaction whereby the defendant claimed to have become the owner of the notes by gift. That was a new, distinct and separate transaction that no one had made the slightest reference to but himself. He attempted to prove a transaction that no witness had yet introduced. What the other witnesses testified to were facts tending to prove the loan and the creation of the obligations. What
he
testified to were facts tending to show that the obligations were discharged as to him by an executed gift from his father. That w'as clearly within the prohibition of § 829 and was properly excluded.
3. But it is said that the plaintiffs required the defendant to produce the note and policy of insurance. That added nothing to the plaintiffs’ case. They had not counted upon the note as a cause of action, but the original loan. The note was not given in evidence by the plaintiffs, but simply identified. The policy of insurance was, but that did not prove any personal transaction with the defendant. The note was given by Maguire and did not prove or tend to prove any personal transaction between the defendant and his father. It is quite impossible to conceive how what the witness said with respéct to the manner and the purpose under which these two papers came to the hands of the deceased in his lifetime opened the door to the defendant to testify that at some time subsequently they had been transferred to him by his father through an executed gift.
The judgment should be affirmed, with costs.