v This action is brought by the administrators of. one Oscar F. Ridgeway to recover from Fred C. Hart, a son-in-law of said Ridge-way, certain certificates of deposit and a bo.olc in the Elmira Mechanics’ Society, which' were in the possession of said Hart at the death of said Ridgeway. Hart claimed the right to the posses*107sion of these evidences of indebtedness by virtue of a gift claimed to have been made to Hart’s wife,' who was the daughter of said Ridgeway, on August 29,1908. This daughter died suddenly upon September 11, 1908, and Mr. Ridgeway himself died upon November 4, 1908. The gift was sought to be established primarily by the evidence of Hart himself. He swore that upon the day of the gift Ridgeway was taking dinner with him and his wife. After the dinner, and after they had passed into the living room, while he was putting on his coat preparatory to departing, he swears that his father-in-law took a paper from his pocket and handed it to his wife, saying: “ This contains my certificates of deposit and loan book, and I give them to-you. Take them, they are yours.” He swears that this was all that was said ; that he himself did not say a word, nor was he referred to in any way; that his wife took the paper, put it in a drawer, in a desk, and sometime afterward gave it to him and he took it and put it in a safe of his employer, where it remained until after the death of Ridgeway.
The first question to be considered is the competency of this evidence. If Hart were not competent to swear to this transaction, then there is no evidence of any gift and the judgment is wrong. In Cary v. White (59 N. Y. 336) it was held that section 399 of the Code of Procedure, which is substantially the same as the present section 829 of the Code of Civil- Procedure, “does not preclude a party from testifying to statements made by a deceased person to a third party; and this is so, although the witness participated in the conversation, so long as his testimony is limited to what was not personal between him and the deceased.” Now this rule has been criticized- at times and has been limited. It has never been overruled. It is recognized in O’Brien v. Weiler (140 N. Y. 281, 286). In Hutton v. Smith (175 N. Y. 382) the court distinctly recognizes the rule "with certain limitations. The court says of the rule: “ It has now been limited to this extent at least that all conversations or transactions between persons since deceased and a third party in the presence or hearing of the witness may not be testified, to by such witness if he by word or sign participated in the transaction or conversation, or is referred to in the course df it, or was in any way a party to it.” In Lawyer v. White (198 N. Y. 323) Judge Gray, in writing for the court, says: “ For some time, it was doubted how *108far its provisions extended to such cases as where a person offered' to testify to conversations, or transactions, between, persons since deceased and a third person in the presence, or hearing, of the witness. It was, finally, held that they might not be testified to by such witness, if he participated in the transaction, or conversation, or was in any way a party to it, by reference, or otherwise.” " In Hutton v. Smith (175 N. Y. 375) that question was considered and the cases reviewed. As.far as the cases stand to-day, therefore, a party interested in the event may testify to a conversation between the deceased and a third party, in which he did not participate, to which he was not a party and in which he was not'referred to. Within that rule the evidence of Hart was to my mind clearly competent. This conversation occurred after they had gone from the dining room to the adjoining room, after Hart had separated himself from liis wife and his father-in-law, and was putting on his coat preparatory to departure. It was a transaction purely between the father-in-law and the witness’ wife, in which he at the time had no interest whatever, to which he was not a party and in which he was in no manner referred to.
Assuming then the competency of this evidence,, a more serious question to my mind arises as to the weight of evidence upon the question as to whether this gift was one causa mortis or one inter vivos. If the gift were one causa mortis the death of the donee prior to the death of the donor revoked it.. Otherwise, if the gift were one inter vivos.
Upon this question the jury has found with the defendant after a charge which stated 'the rule fully as strong as the plaintiff could ask. It was pointed out in what cases the presumption was in favor of the fact that the gift wás causa mortis, and the burden of proof was placed upon the defendant to show that it was an absolute gift. It was evidently contemplated by the trial justice in denying the motion for a new trial, that the question was a close one, upon which the verdict of the jury- must control.
There are two or three facts which lead me to .the conclusion "that" we ought not to interfere with the verdict of the jury. First. The most important fact is that for nearly two months after "the death of the daughter the envelope containing these securities was never demanded by Bidgeway. It does not appear that he ever knew *109that Hart had them in the safe. If the property had been given to his daughter as a gift causa mortis, he would clearly have sought them out and taken them back after her death. This he never did. Of' course his evidence is not before the court, but it is inconceivable that if this were such a gift as was claimed by the plaintiff he should not have demanded of Hart the return of these securities during those two months after the death of his daughter, and prior to his own death, and taken them back from Hart.
Second. Among his papers afterwards found in his room was an envelope similar to the one in which these securities were inclosed when given to the daughter.. Hpon that envelope was marked, “ In care of F. 0. Hart.” That envelope was dated October 6, 1907. In the envelope, however, in which these securities were inclosed was no such indorsement. If it had been intended to put them in her charge for him, or in charge of F. 0. Hart for him, why was this indorsement omitted from the new envelope in which the securities were handed over to her ? This seems to me a significant fact as showing that the property was handed as a gift; perhaps not significant, however, upon the question as to whether the gift was inter vivos or causa mortis. By disinterested evidence it is shown that this envelope was deposited in the safe of Friend & Metzger, where the defendant Hart worked, soon after the date of the alleged gift, and there is no evidence that at any other time any other envelope was put in that safe for Hart.
It is true that there are facts from which inferences might be drawn by the jury to the contrary. This was practically all the property that this man had, nevertheless he was working right up to his death,-and received his regular wages from, the railroad company, which were abundant to support him. The witness Huntington, almost as much interested as the witness Hart, swears that Hart said that his father-in-law had given his property to his wife and had told her in substance that she must take care of him in his old age if lie needed it. It is claimed that this is not denied by Hart. If this declaration were made by Hart, however, it is evidence of a gift inter vivos and not of a gift cama mortis, as it is evidence of an agreement between him and his daughter that in consideration of the gift she would take care of him in his old age. It is claimed that he stated to a servant of the person who was fur*110nishing 'him his board before his death, which occurred upon the fourth of November, that his interest was coming due very soon and that when he drew it he would pay his board.- But this is not sworn to by the person to whom he said it, but the woman who furnished the board said that her servant told her that he made some such statement. ■ But the interest on the certificates of deposit did ■not come due until about the twenty-third of December, two months off, while his wages from the railroad company came due, about the-middle of November, and this was undoubtedly the fund to which he was referring in case he made any such remark to the servant, which is only proven by hearsay testimony. There is evidence of declarations that he made to .the effect that he had given this property to his daughter and that he had arranged liis. affairs, to which I do not give very much significance.
Again, it is a close question whether this can in any event be considered as a gift, causa mortis. . In, volume 3 of Pomeroy’s Equity Jurisprudence [3d ed.], section 1146, a gift causa mortis is defined as “ a gift absolute in form, made by the donor in anticipation of his speedy deathP At page 2231 the author continues: “ Such a donation may be made by a donor who anticipates his speedy death because he is Suffering at the time under an attack of severe illness which he supposes to be his last,” or because exposed to peril. It may be that tiffs statement is a little broad, but there is no question that to constitute a gift causa mortis a donor must be suffering in his last illness and be anticipating a death not far distant. The illness from which he was suffering was Bright’s disease and hard-, ening of the arteries. There seems to be no question that men survive for years with such ailments. He had a slight attack in June, apparently of over-exhaustion, but was not sick in bed., He went to a hospital for two weeks after his daughter died-, but this was because his housekeeper'had left the house and he would have been in the house alone; but while at the hospital he had no medicines, did not stay in bed at all and simply made it his home. The evidence is very scant, of any such condition of health on his part, or of any apprehension on his part of speedy death', from which ■ can be inferred an intention to make a. gift causa mortis, or the right to have a gift actually made so construed, and not at all sufficient in ■ my judgment in view of the fact that for two months after his *111daughter’s death he made no retraction óf the gift, and never attempted to take possession in any way of these securities which he had given to her.
This case was decided by a jury. Hart himself was before the jury and testified fully to the transaction. The jury could tell whether he was telling the truth. It may be that Ridgeway cared a great deal more for Hart than he did for 1ns other relatives, and the fair inference is that' he was perfectly willing to trust his future to his daughter and to Hart, and to trust to them for any care that he might need in case he should be unable to work up to the time of his death.
I recommend, therefore, that the judgment and order be affirmed, with costs.
Cochrane, J., concurred; Sewell, J., concurred in opinion of Kellogg, J., as to the law, and in opinion of Smith, P. J., as to the facts.