Barker, J.;
Upon the trial the contestants called as a witness in their own behalf, Amelia Ward, wife of Asa B. Ward, one of the contestants, and she was sworn and gave some evidence without objection. It was then proposed, by the contestants, to prove by the witness the actions, doings and sayings of the testatrix, done and uttered in her presence, some-ten days before the execution of the will, with a view of establishing the want of testamentary capacity on the part of the deceased. This offer was objected to by the proponent on the ground that it was incompetent for this witness to relate personal transactions or communications had between herself and the deceased, as the witness was interested in the event of the suit, as the direct result of the verdict would be, in case the probate of the will was rejected, to vest in her husband, one of the contestants the fee in [557]*557part of the real estate devised by the will and secure to the witness an inchoate right of dower in the same lands. This objection was sustained, on the ground that the witness was interested in the event of the suit, and an exception was duly taken.
This ruling presents the question which will be first considered. If the witness was interested in the event of the suit, then she was disqualified to prove by her own evidence personal transactions or communications had between herself and the deceased. (Code of Civil Pro., § 829.) If she was not. interested in the event of the suit, then she was a competent witness for and in behalt of her husband upon all the issues, as the common law liability arising out of the fact of coverture is removed by the provision of section 828.
Should the will be denied pr.obate, the husband would become seized in fee of an undivided portion of the land devised, and the witness would be immediately vested • with an inchoate right of dower in the same premises. The disqualifying interest of the witness must be in the event of the cause itself and must be a pecuniary one. An interest in the question to be decided, is not sufficient to make a witness incompetent. If the verdict cannot be given in evidence in other actions or proceedings, for or against the witness, then he must be considered as interested in the question only and he is not disqualified.
The interest which will operate to disqualify the witness is stated in 1 Greenleaf on Evidence, as follows :
“ 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.” (Sec. 390).
This general statement of the rule is universally accepted as accurate and safe as a guide in disposing of cases where the question is involved. (Hobart v. Hobart, 62 N. Y., 83; Miller v. Montgomery,, 78 N. Y., 283.)
In this State it has been frequently adjudicated and must now be regarded as settled, that an inchoate right of dower in lands is a subsisting and valuable claim or interest, possessing a pecuniary value, which is susceptible of estimation, although there could be [558]*558no right of enjoyment during the life of the husband, and-her estate in the lands of which her husband is seized, is incomplete and not consummated until after his death. This interest is not readily definable and it is difficult to select apt words to express her legal right or the nature of the same. Before the death of her husband she has no estate in the lands, nor anything which she can assign or convey to another, or which can be taken in execution for her debts, nor can she protect her interest from waste or destruction while the same is in the hands of her husband or his alienee. (1 Wash, on Beal Estate, 284, 285.)
She may. however, join with her -husband and release her inchoate right to his grantee, and by that act bar her right of dower in case she survives her husband.
In view of the more recent decisions, in which the nature, character and value of such an estate has been considered and determined, I am of the opinion that the same is a present certain and vested interest, within the rule which disqualifies a witness on the ground of interest.
In Simar v. Canaday (53 N. Y., 298) it was held, that as between a wife and any other person than the State or its delegates or agents, exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end.
This was an action at law, prosecuted by the husband and wife, against the defendant to recover damages arising from the fraud of the defendant, in inducing the defendants to convey certain real estate, the wife joining in the deed releasing her inchoate right of dower. It was there held, that she was a proper parry to the suit, and if a fraud had been practiced which induced her to release her inchoate right of dower, it did work harm and injury to a right which she had, and she was entitled to recover the damages, which she had sustained, and a verdict in favor of herself and husband was upheld.
Witthaus v. Schack (24 Hun, 328) was an action by the wife to set aside a release of dower which she had executed, on the ground that she was induced to execute the same by reason of fraud, and it was held that the action could be maintained as the transaction related to and affected a subsisting and valuable right in her favor.
[559]*559It has been held that a release by a wife, of her inchoate right of dower, by joining with her husband in the conveyance of the same, is a good consideration for setting aside a portion of the consideration money for her separate use, and equity will compel the husband to execute his promise. (Garlick v. Strong, 3 Paige, 440.)
It was also held in Doty v. Baker (11 Hun, 222), that the release by the wife of her inchoate right of dower in the lands of which her husband was seized, was a good consideration for and upheld a transfer of property made by her husband for her separate use,, and when the same was no more than a just and fair compensation, the transaction would be upheld as against the creditors of the husband. That the amount of her inchoate right of dower might be determined by a computation under the annuity tables. (See, also, Denton v. Nanny, 8 Barb., 618; Matthews v. Duryee, 4 Keyes,. 525; Mills v. Van Voorhies, 20 N. Y., 412.)
Hpon the authority of these cases, the witness had a direct interest 'in the event of the suit, for the reason that if the verdict had been in favor of the parties calling her to the stand, she would have been vested with a present and certain interest in the subject of the controversy. If she should survive her husband, then the record would be legal evidence in her favor, to prove the seizin of her husband in the lands devised and thus defeat any .title set up under the will.
Although the witness was interested in the event of the suit, yet she was competent to give any evidence pertinent to the issue, not within the prohibition of the statute, which is limited “ to personal transactions or communications between the witness and the deceased person.”
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Barker, J.;
Upon the trial the contestants called as a witness in their own behalf, Amelia Ward, wife of Asa B. Ward, one of the contestants, and she was sworn and gave some evidence without objection. It was then proposed, by the contestants, to prove by the witness the actions, doings and sayings of the testatrix, done and uttered in her presence, some-ten days before the execution of the will, with a view of establishing the want of testamentary capacity on the part of the deceased. This offer was objected to by the proponent on the ground that it was incompetent for this witness to relate personal transactions or communications had between herself and the deceased, as the witness was interested in the event of the suit, as the direct result of the verdict would be, in case the probate of the will was rejected, to vest in her husband, one of the contestants the fee in [557]*557part of the real estate devised by the will and secure to the witness an inchoate right of dower in the same lands. This objection was sustained, on the ground that the witness was interested in the event of the suit, and an exception was duly taken.
This ruling presents the question which will be first considered. If the witness was interested in the event of the suit, then she was disqualified to prove by her own evidence personal transactions or communications had between herself and the deceased. (Code of Civil Pro., § 829.) If she was not. interested in the event of the suit, then she was a competent witness for and in behalt of her husband upon all the issues, as the common law liability arising out of the fact of coverture is removed by the provision of section 828.
Should the will be denied pr.obate, the husband would become seized in fee of an undivided portion of the land devised, and the witness would be immediately vested • with an inchoate right of dower in the same premises. The disqualifying interest of the witness must be in the event of the cause itself and must be a pecuniary one. An interest in the question to be decided, is not sufficient to make a witness incompetent. If the verdict cannot be given in evidence in other actions or proceedings, for or against the witness, then he must be considered as interested in the question only and he is not disqualified.
The interest which will operate to disqualify the witness is stated in 1 Greenleaf on Evidence, as follows :
“ 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.” (Sec. 390).
This general statement of the rule is universally accepted as accurate and safe as a guide in disposing of cases where the question is involved. (Hobart v. Hobart, 62 N. Y., 83; Miller v. Montgomery,, 78 N. Y., 283.)
In this State it has been frequently adjudicated and must now be regarded as settled, that an inchoate right of dower in lands is a subsisting and valuable claim or interest, possessing a pecuniary value, which is susceptible of estimation, although there could be [558]*558no right of enjoyment during the life of the husband, and-her estate in the lands of which her husband is seized, is incomplete and not consummated until after his death. This interest is not readily definable and it is difficult to select apt words to express her legal right or the nature of the same. Before the death of her husband she has no estate in the lands, nor anything which she can assign or convey to another, or which can be taken in execution for her debts, nor can she protect her interest from waste or destruction while the same is in the hands of her husband or his alienee. (1 Wash, on Beal Estate, 284, 285.)
She may. however, join with her -husband and release her inchoate right to his grantee, and by that act bar her right of dower in case she survives her husband.
In view of the more recent decisions, in which the nature, character and value of such an estate has been considered and determined, I am of the opinion that the same is a present certain and vested interest, within the rule which disqualifies a witness on the ground of interest.
In Simar v. Canaday (53 N. Y., 298) it was held, that as between a wife and any other person than the State or its delegates or agents, exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end.
This was an action at law, prosecuted by the husband and wife, against the defendant to recover damages arising from the fraud of the defendant, in inducing the defendants to convey certain real estate, the wife joining in the deed releasing her inchoate right of dower. It was there held, that she was a proper parry to the suit, and if a fraud had been practiced which induced her to release her inchoate right of dower, it did work harm and injury to a right which she had, and she was entitled to recover the damages, which she had sustained, and a verdict in favor of herself and husband was upheld.
Witthaus v. Schack (24 Hun, 328) was an action by the wife to set aside a release of dower which she had executed, on the ground that she was induced to execute the same by reason of fraud, and it was held that the action could be maintained as the transaction related to and affected a subsisting and valuable right in her favor.
[559]*559It has been held that a release by a wife, of her inchoate right of dower, by joining with her husband in the conveyance of the same, is a good consideration for setting aside a portion of the consideration money for her separate use, and equity will compel the husband to execute his promise. (Garlick v. Strong, 3 Paige, 440.)
It was also held in Doty v. Baker (11 Hun, 222), that the release by the wife of her inchoate right of dower in the lands of which her husband was seized, was a good consideration for and upheld a transfer of property made by her husband for her separate use,, and when the same was no more than a just and fair compensation, the transaction would be upheld as against the creditors of the husband. That the amount of her inchoate right of dower might be determined by a computation under the annuity tables. (See, also, Denton v. Nanny, 8 Barb., 618; Matthews v. Duryee, 4 Keyes,. 525; Mills v. Van Voorhies, 20 N. Y., 412.)
Hpon the authority of these cases, the witness had a direct interest 'in the event of the suit, for the reason that if the verdict had been in favor of the parties calling her to the stand, she would have been vested with a present and certain interest in the subject of the controversy. If she should survive her husband, then the record would be legal evidence in her favor, to prove the seizin of her husband in the lands devised and thus defeat any .title set up under the will.
Although the witness was interested in the event of the suit, yet she was competent to give any evidence pertinent to the issue, not within the prohibition of the statute, which is limited “ to personal transactions or communications between the witness and the deceased person.”
The evidence rejected was offered by the contestants, as bearing on the question of the mental capacity of the testatrix, to make a valid will. Before the objection was interposed, the witness had stated that she had an acquaintance of many years standing with the deceased, and was present on an occasion when she saw the deceased in a fit; the witness then made the further statement, that she was at the house of the deceased on another occasion, in October, covering a period of four days, which was some ten days previous to the execution of the will.
[560]*560Thereupon the following question was propounded to the witness:
State Lodemas’ actions, conduct and sayings, on the sixteenth, seventeenth, eighteenth and nineteenth of October, being the days when the witness was present at the house of the testatrix.
It was to this question the objection was interposed that the witness was disqualified by the statute, as it called for a personal conversation between the witness and the deceased.
From all that is made to appear by the bill of exceptions, it cannot .be said that this inquiry necessarily called- for a personal transaction or conversation between the witness and the deceased. The question does necessarily imply that she was .at the time mentioned in the presence of the deceased, and from* the witness’ previous statement it may be inferred that it was at the house of the deceased where the occurrences called for by the question happened. The witness, in legitimate response to this inquiry, could have narrated the actions and conduct of the deceased indicating her mental condition, without necessarily relating' anything concerning a personal transaction or communication with, the deceased.
The things which the witness saw and observed in the conduct and behavior of the deceased, might come to her knowledge without a personal interview with the deceased and without the testatrix being conscious of her presence in the house. The same may be said concerning the sayings of the deceased, uttered within the hearing of the witness on the same occasions.
We cannot assume that .the witness was alone with the deceased at those times, and if such was the fact, a very different question would be presented. If the proponent who interposed the objection knew, or had reason to suppose the fact to be, that these parties were alone or had a personal interview, and an answer to the inquiry would have disclosed a personal transaction or conversation with the deceased, he should have brought out the fact by a preliminary inquiry of the witness, before interposing the objection. The incompetency of witnesses is to be made out by the party alleging the same. (Cary v. White, 59 N. Y., 336.)
The validity of the exception must be determined as the case appeared at the time the same was interposed. By other provisions of the Code parties to actions and interested persons are made competent witnesses in their own behalf. The special prohibition [561]*561contained in section 829 is made an exception to tlie general rule as to competency.
“ The primary intent of the prohibition is very apparent, and is to prevent a surviving party from proving by his own testimony a personal transaction or communication between himself and the deceased person, which but for the prohibition he might do without fear or possibility of contradiction.” .(Pinney v. Orth et al., 88 N. Y., 447-451.)
It has been repeatedly held that the -prohibition does .not extend to conversations had between the deceased and third persons which were overheard and listened to by the witness. (Simmons v. Sisson, 26 N. Y., 277; Cary v. White, supra; Heildebrant v. Crawford, 65 N. Y., 111.) If the transaction be one wholly independent of the witness, neither induced by his solicitation or supported by his actions, one with which he in no way interferes or joins, it cannot be one of a personal character as regards him. (Holcomb v. Holcomb, 20 Hun, 159.) It does not appear by the bill of exceptions, nor is there the least reason for supposing the witness sought, or in any way was instrumental in bringing about the opportunity which enabled her to hear the sayings or witness the behavior of the testatrix.
For the purpose of illustrating the view which we take as to the relation which the witness held to the deceased, as presented by the case now before us; suppose a visitor in an insane asylum should have an opportunity to observe the actions and hear the utterances of an inmate without holding any conversation with him, can there be any doubt as to the competency of such a witness to relate all he may have -heard or seen of the “ doings or sayings,” of the inmate without -invading the rule of prohibition as set forth in the statute.
We entertain no doubt, but that under such circumstances, the observer would be a competent witness to testify to the same, although interested in the event of the suit. For the error thus pointed out, a new trial mus't be granted on the issues.
Asa B. Ward, one of the contestants, was also a competent -witness in his own behalf to give evidence as to all matters not brought within the .prohibition of the statute. The evidence which he proposed to give as a witness in his own behalf is of the [562]*562same general nature and character as that offered to be proved by his wife, the rejection- of which we have just considered and found to be erroneous. In the offer made in connection with the production of this witness, there is some reason for saying that the evidence which he proposed to give related to a personal conversation and transaction, which he had with the deceased, but as the question is obscure and in doubt, and it is not likely that the question will be presented on another trial, in precisely the same form, we do not give the exception particular consideration, as what we have already said concerning the rejection of the testimony of the witness Amelia Ward, sufficiently indicates the subjects and 'evidence which do not come within the prohibition of the statute.
New trial granted, with costs to abide the event.
Hardin, J., concurred.