Plaintiff has recovered a judgment for the conversion of certain moneys by the defendant, which moneys have been held to have been the moneys of plaintiff’s husband, whose estate she is now administering. Thomas J. Scully, plaintiffs’ husband, died on the 3d day of October, 1900. In 1893 there was opened an account in his name in the Mechanics and Farmers’ Savings Bank, From that account some moneys were drawn and some deposited therein, until at the time of his death there was in said bank to the credit of Thomas Scully the sum of $815.75. John Scully was the father of Thomas Scully. As far as appears from the evidence at all times since the opening of the account the bank book was in the possession of John Scully. Shortly prior to October. 13, 1900, Sarah Scully, this plaintiff, was appointed administratrix of her husband’s estate. Upon October thirteenth she went to this bank in company with her father-in-law, John Scully, and this defendant. Thereupon the moneys were withdrawn by her and given to John Scully, who in their presence deposited the moneys, with the exception of about fifty dollars, which he retained, in the National Savings Bank in the city of Albany to the credit of Sarah and Margaret Scully, now Margaret McGrath, this defendant. Upon January 3,1901, these moneys were withdrawn from the bank by Margaret Scully under the direction of her father, John Scully, and deposited in the Albany Savings Bank to the credit of Delia Scully, a sister of *361Margaret, and Margaret. Shortly thereafter the deposit was again changed in the same hank to the credit of Bridget Scully, the wife of John Scully, and Margaret. - The moneys were afterwards withdrawn upon the 19th day of September, 1904. The claim of the plaintiff is that these moneys were at all times the moneys of her intestate and that the act of Margaret Scully in withdrawing them from the National Savings Bank and depositing them to the name of herself and Delia Scully, her sister, was an unlawful interference with said funds, and, therefore, constituted a conversion- thereof.
The plaintiff’s right must mainly depend upon the force of the presumption that the moneys deposited in the name of Thomas Scully were his moneys. The force of this presumption is largely overcome by the fact that at all times the bank book was held in the possession of John Scully, the father. These moneys could not be withdrawn without the presentation of this bank book. All of this time Thomas Scully and Sarah Scully had an individual account in another savings bank in Albany, which was in no way connected with this account, and of which they held the bank book. The withdrawal of these deposits in January, 1901, by Margaret Scully became known to Sarah Scully, as she swears, within a year and a half after they were withdrawn. John Scully lived thereafter until February, 1905. His wife, Bridget Scully, lived until September, 1905. The fact that Sarah Scully waited to insist upon this demand until after the death both of John Scully and Bridget Scully, his wife, goes far to corroborate the claim of the defendant that the moneys were the moneys of John Scully. It is not claimed that Margaret Scully ever had any personal benefit from this deposit, and in fact the evidence that she did not have any personal benefit was excluded as immaterial, and probably properly excluded. Whether the deposits in the Mechanics and Farmers’ Savings Bank were in fact the property of John Scully or Thomas Scully was a question of fact. Margaret Scully swears that at the time the deposit was withdrawn Sarah Scully handed the moneys over to John Scully and said, “Here is your money.” This is denied by Sarah Scully. Delia Scully further swears that at one time when her father wanted to withdraw some money from this bank he *362sent for Thomas Scully and that Thomas Scully asked why he did not withdraw it all: Under these facts it may well be doubted whether the verdict was a just verdict, or whether it was not against the weight of evidence.
The question of the weight of evidence need not be here considered, however, in view of certain rulings by the trial court which seem to me to be fatal to this recovery. While Thomas Scully was living Delia Scully swears that he and her father, John Scully, had a conversation in reference to this deposit. The defendant offered to prove that conversation, to which an objection was made, which objection was sustained by the trial court. This evidence should have been admitted. It was competent either as a declaration or admission of Thomas Scully; binding upon his representative, or as part of the res gesta establishing the relations of the parties in reference to the deposit and its ownership. That conversation may well. have cleared up any doubt that might otherwise exist as to why this deposit was in the name of Thomas Scully, while his father, John Scully, at all times held the pass book. The trial court further allowed Sarah Scully to swear to certain conversations with John Scully, which were material as bearing upon the ownership of the property. This testimony was objected to as incompetent under section 829 of the Code of Civil Procedure. There can be no doubt that Sarah Scully was personally interested in the result of the action. She was administratrix of the estate and was also one of the beneficiaries thereof. Margaret Scully claims simply to have acted under John Scully, under his ' authority or direction. These two facts would seem to bring this testimony directly within the prohibition of the section. For these errors the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred; Houghton, J., in opinion.and Betts, J., in result.