If, while the father was being entertained by his daughter and her husband at the dinner table, he had made this alleged gift to her, it could not be seriously contended that the husband was not a party to the transaction. The fact that he swears that it did not occur then, but did occur as they were going out of the dining room and while he was putting on his coat, is not material. The statute is to prevent perjuries, based upon the theory.that where one party to the transaction is dead the other party cannot be trusted to give a material conversation with him. The policy of the law equally well prohibits a husband, who with his wife is entertaining her father, from separating himself from them by his testimony and swearing to beneficial gifts given by him to her in his presence. In my judgment he was a party to the transaction, as he is to the action, and is an incompetent witness. The fact is he is now swearing in his own behalf against her father’s estate, her father being dead. ,We are not discussing the question whether if she were living and he could derive no benefit from the gift he would be competent or not. But the fact is, that at the time he was sworn no person in existence but himself was interested in the gift, and it is familiar law that the competency of a witness is deter*112mined by the situation at the trial' and not by the situation existing at the time the transaction sworn about takes place.
He was a bookkeeper and necessarily more or less acquainted with business transactions. He knew that the securities would not be fully available to his wife unless transferred. If the gift actually took place, and he is honest about it, he would have been the first one to see that the securities were legally transferred by proper indorsements. I think the same suspicion surrounds this evidence that surrounds every claim made against the estate of a .deceased person which-rests entirely upon the evidence of interested parties. In all such cases it is fair to assume that the witness is trying to swear the property of the estate into his hands, and that his evidence is colored and made unreliable thereby. It is not probable that the father intended to divest himself permanently of all his property and make himself in his ill-health practically a charge upon the bounty of others or the public. I favor a reversal of the judgment upon' the law and the facts.
Sewell, J., concurred as to the law.