Irrespective of the merits of this action I think the judgment must be reversed because of error in permitting the then defendant Fred C._ Hart to testify to what took place "between the plaintiff’s intestate and his daughter at the timé of the' alleged gift of the moneys in question.
The defendant’s wife Helen was the only child of Oscar F. Bidgeway, the plaintiff’s intestate, who shortly before his daughter’s death, which occurred shortly before his own, held certain certificates of deposit and a bank book which the defendant Hart claimed to own and which this action was brought to recover.
The defendant Hart’s alleged title came through the death of his wife, who died intestate arid without children. The wife’s title depended upon whether or not her father, the plaintiff’s intestate, made a valid inter vivos gift of the moneys to her. The certificates were not indorsed. and stood in the name of Bidgeway, as did the bank book, and the validity of the gift depended upon actual delivery with appropriate words to pass title.
Against the objection of the plaintiff that he was disqualified *113under section 829 of the Code, the defendant Hart was permitted to testify that lie was present at an interview between the father and the daughter at which the father addressed the daughter and handed her an envelope containing the certificates and the bank book, and said: “ This contains my certificates of deposit and loan book, and I give them to you. Take them; they are yours.” This, of course, was most material evidence upon a most vital point.
It is conceded that the defendant was interested in the event of the action and that he was an interested witness, but it is sought to justify his testimony on the ground that he did not participate in the- conversation, and hence that it was not a transaction or communication which he himself had with the deceased, concerning which he was disqualified to speak; and, further, that at the time it occurred he had no interest in the subject-matter and was a mere disinterested third party, because such interest as he had came to him subsequently through the death of his wife.
I do not think the testimony can be justified on this ground. The testimony which the defendant gave supplied the necessary link in his chain of title, and related to a matter which the alleged donor, if alive, could dispute. It must be conceded that the spirit of section' 829 was violated, and, as I interpret it, the letter was also violated. While the phraseology of section 829 of the Code of Civil Procedure has been changed from time to time, its intent has always been, since its first enactment as section 399 of the old Code, to prohibit a party or person interested in the event of an action from testifying against the personal representatives of a deceased person to a personal transaction or communication had with one whose lips were closed by death. All courts have aimed to interpret the statute to meet this intent. Various situations have led to various expressions in the decisions of the courts, some of which confessedly conflict with others. One of the most difficult problems respecting the section lias always been to determine what constituted a transaction or communication, and whether or not it was had with the proposed witness. Decisions can be found stating the broad proposition that if an interested person be a mere bystander, not participating in the conversation or transaction, he may testify concerning it. The weight of authority as well as of reason, it seems to me, is that where an *114interested party is present at a communication, or transaction had between the deceased and another, relating to the transfer of .property to himself, immediately or contingently, such interested party cannot be regarded as a mere bystander, and that because of his interest the transaction or communication must be deemed to have been had with him.
The earliest case to which my attention has been attracted holding, in effect, this proposition, is that of Waver v. Waver (15 Hun, 277). That case involved a gift to one for distribution amongst others. .One of these ultimate beneficiaries was held incompetent to testify to the transaction between the donor and.donee, although he took no part and was a mere onlooker. The same holding was made in Price v. Price (33 Hun, 69).
In Erwin v, Erwin (54 Hun, 166). the wife of the donee, who might take dower, although she expressly refrained from taking. any part in the conversation because the donor .was unfriendly to her, was held incompetent to testify .to a conversation between the deceased donor and her husband, the donee.
In Matter of Palmateer (78 Hun, 43) the daughter of an alleged testator, because of her interest under his'will was held incompetent to testify to a conversation between her father and mother in which she-took no part.
In Eighmie v. Taylor (68 Hun, 573) Martin, .J., made an exhaustive review of the decisions relating to section 829 and concluded from them “ that in probate or other cases where a will, other instrument or act is contested on the ground of undue influence, restraint, mental incapacity or fraud, a person who is interested in the event of an action or proceeding, is disqualified to testify to any transaction or communication which occurred in his presence or hearing, although it was not' with or addressed to' such person, clone in which he participated. It also seems to be established by these cases that, upon other issues, an interested witness may be permitted to testify to a conversation or transaction between a decedent and a third person in the presence of the witness, provided he was not referred to by the parties to such conversation, and did not .participate in it by word, sign or act, but if there was any such re'ference or participation, although slight, the witness is incompetent.”
The controversy in Ditmars v. Sackett (92 Hun, 381) was con*115cerning personal property covered by a chattel mortgage, the defense to which was usury. Bradley, J., concludes his opinion as follows: “ It is now quite well settled that the personal transaction or communication between a witness having an interest in the result and a decedent, to which the inhibition applies, includes a transaction or communication of the decedent with another in the presence of the witness on the subject to which his interest relates, although the latter takes no actual part in it.”
In Stillwell v. Boyer (21 App. Div. 231), which was an action in ejectment, it was held that a party was prohibited from testifying to a conversation had between the person through whom he derived his title and a person under whom defendants claimed title, both being dead, although he took no actual part in the conversation and had no interest in the premises in question at the time it took place. To the same effect is the holding in Dolan v. Leary (69 App. Div. 459).
The later of the above decisions are based on the holdings of the Court of Appeals in Matter of Dunham (121 N. Y. 575) and Matter of Bernsee (141 id. 389). Both of those cases involved the admission of wills to probate, and'it was.held that -a beneficiary under a will, although taking no part and being a mere bystander, was incompetent to testify to transactions had between the testator and third persons. The underlying principle seems to be that because of his interest the communications with others in his presence being beneficial to him must be deemed to have been made to him.
Burdick v. Burdick (180 N. Y. 261) was an action by an heir to- set aside a deed executed by his ancestor to another. The defendant was held incompetent to testify to a conversation which she had overheard between the deceased and another and in which she took no part. Cullen, Ch. J., says: “The witness being a party to 'the action was incompetent to testify to such transactions under section 829 of the Code, and it is settled by authority that such, a disqualification includes conversations or transactions between the deceased and third parties, at which the witness was present, even though she did not take part therein.”
It will be observed that some of the later decisions cited are outside the class specified by Martin, J., in Eighmie v. Taylor (supra).
*116The rule which he laid down that only in those cases involving fraud, undue influence and the like, was a party prohibited from testifying to a coriversation in which he took no part, is too narrow. In my opinion the prohibition applies to any conversation which tends to establish the title to property of the party attempting to testify, whether he took part in it or not.
It is of no importance that the defendant Hart had no interest in the subject-matter of the gift at the time the conversation between the plaintiff’s intestate and his daughter was had and the property delivered to her. A prospective heir at law has no interest in the property of his ancestor until death, nor has a legatee or devisee any interest in the property of a testator until death. It, however, has been universally held that an heir at law cannot testify to what he observed respecting the feebleness of ■ mind or body of the alleged testator for the purpose of defeating a will, nor can the legatee or devisee testify to his observations with respect to strength of mind or body for the purpose of sustaining it. (Matter of Eysaman, 113 N.Y. 62; Holland v. Holland, 98 App. Div. 366; Holcomb v. Holcomb, 95 N. Y. 316.) An observation of weakness or strength is not in any strict sense a communication or transaction because nothing is said and the act cannot be directed to the observer, still the courts make it a transaction and a communication had between the deceased and the heir or the legatee because it is an act upon which each seeks to base his title. Relying upon such acts to make title the courts very properly say that they appropriate the acts to themselves and become participants in them, and, therefore, are disqualified from testifying to them.
But it is claimed that all the decisions which have been referred to and the theories upon which they are founded have been overthrown by the decision of the Court of Appeals in Hutton v. Smith (175 N. Y. 375). It is true there are expressions in the opinion in that case which unfortunately have been Woven into the syllabus, to the effect that where an interested party took no part in the transaction or communication, but was a mere spectator, he is not disqualified as a witness. The final holding of the case Was that whether the interested witness was disqualified or not the testimony which he gave was not sufficiently material to call for a reversal of the judgment: It is perfectly manifest that it was not *117the intention of the court to repudiate the doctrine enunciated in Matter of Dunham, (supra) and in Matter of Bernsee (supra), and to reaffirm the doctrine of Cary v. White (59 N. Y. 336); Simmons v. Havens (101 id. 427) and O'Brien v. Weiler (140 id. 281) and kindred cases. On the contrary, the intent was precisely the opposite. The three cases last above cited are criticised and limited, and the Dunham case and the Bernsee case are both quoted from and commended as enunciating the true rule. Chief Judge Parker, who wrote the opinion, says: “ Now'returning to the O'Brien case in 140th New York we find the court did hold it was not error to permit the witness to testify to an interview between deceased and a third person of which the witness was a silent auditor, and cited in support of the position Gary v. White and Simmons v. Havens (supra). How, as has been noted, Cary v. White was distinguished and questioned in the Eysaman case, and the only authority cited in Simmons v. Havens in support of the decision made was" Cary v. White / and it is clear in the light of the other authorities in this court to which reference has been made, that the rule laid down in those cases and the earlier ones to which we have called attention, was too broadly stated. 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 of it, or was, in any way a party to it.” It is from the last sentence, omitting the words at least, that the syllabus of the case is formulated. It is plain that the language used was employed by way of argument and that there was no intention of holding broadly that under no circumstances could an interested witness be disqualified from testifying even though he was a mere spectator. This view is strengthened and made conclusive by the later decision of Burdick v. Burdick (supra), in which it is expressly stated that an interested party might under some circumstances be disqualified from giving testimony concerning a transaction or communication between a deceased person and another although he took no part therein. The court would not have enunciated such a rule if it had been previously repudiated in Hutton v. Smith.
My conclusion is that the defendant Hart was incompetent to *118give the testimony which he did, and that the judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.
Judgment and order reversed on the law,- the facts having been-examined and the conclusion thereon approved, with costs to appellants.