I agree in a reversal of this judgment only upon the ground that the court erred in refusing to receive the testimony of Delia Eyan respecting the conversation between her father, *363John, and Thomas J. Scully, deceased, regarding the money in dispute; and I concur in such holding solely upon the ground that proper objection was not made.
The only objection interposed was that the testimony was incompetent, hearsay and self-serving. There was no objection that the witness herself was incompetent to testify as against this plaintiff because of the prohibition of section 829 of the Code, nor were facts sufficiently developed to show that she was interested in the estate of John Scully, deceased.
The money which it is alleged the defendant converted was deposited in the name of Thomas J. Scully at the time of his death. The defendant attempted to justify her intermeddling with and conversion of such money, not because she herself was the owner, but on the ground that it belonged, not to Thomas J., the deceased, in whose name it was deposited, but to her father, John, and that whatever she did with it was done in pursuance of his direction.
The record shows that John Scully was dead but it does not appear that his daughter Delia would gain anything by adding the $760 in dispute to his estate if he died still owning it. If he died such owner leaving a will of which she was residuary legatee, or if the fund was specifically bequeathed to her, or if he died intestate and she was one of his next of kin, manifestly she would gain through the success of the defendant in retaining the money for his estate, and hence she would be incompetent to testify against the plaintiff as administratrix, to personal transactions had with her testator or intestate, for she would be testifying in her own behalf and for her own benefit. (Matter of Meehan, 59 App. Div. 156; Holcomb v. Holcomb, 95 N. Y. 316, 325; Brigham v. Gott, 20 N. Y. St. Repr. 423.)
But even if it appeared that she was interested in one of these ways and would gain or lose by the result of the present action, no objection was made as to her competency as a witness to testify. The evidence sought from her was material and proper, notwithstanding the fact that she may have been incompetent to give it. An objection to be available under section 829 must go to the competency of the witness, and a general objection as to the competency of the evidence itself is *364not sufficient to invoke its protection. (Hoag v. Wright, 174 N. Y. 36; Stevens v. Brennan, 79 id. 254.)
I do not agree, however, that it was error for the court to permit the plaintiff, Sarah Scully, the administratrix of Thomas J. Scully, deceased, to testify in her own behalf to conversations which she had with John Scully,- deceased. She did not claim title to the fund in controversy through John Scully by assignment or in any manner. She claimed title to it as administratrix of her husband, Thomas J., because the money was on deposit in his name when he died, and thus prima facie belonged to him, notwithstanding the' fact that she had been induced by John to withdraw it as administratrix and redeposit it in the name of herself and the defendant. The defendant is not the administratrix or executrix of John Scully, deceased, but a mere individual who assumed to meddle with the deposit and who attempts to justify her acts, not because John gave the money to Thomas J., but because it always belonged to John and was merely being held by Thomas for his benefit. As administratrix the plaintiff mad e prima facie title to the money by simply showing that it was on deposit in the name of her intestate when he died, and that title could be defeated only by the fact that she turned it over to John in settlement of a bona fide claim made by him against the estate of her intestate;, and upon no theory of the action, therefore, can it be said that she claimed title thereto through John Scully, a deceased person.
Although Sarah Scully was entitled to share in the estate of ■her deceased husband,, and was, therefore, interested in the recovery of the deposit which stood in his name, still I think she was competent to testify in her own behalf as administratrix to personal transactions had with John Scully, deceased, tending to show that the claim of the defendant was unfounded. The prohibition of section 829 goes only to testifying against an executor or administrator. An executor or administrator, although sharing in the distribution of the estate, is not prohibited from testifying in favor of himself as executor or administrator to transactions had between his own decedent and the adverse party. (McLaughlin v. Webster, 141 N. Y. 76; Martin v. Hillen, 142 id. 140, 144; Jones v. Perkins, 29 App. Div. *36537; Klock v. Brennan, 82 Hun, 262.) Section 829 expressly allows the executor or administrator to testify to such personal transactions, the only penalty being that the door is opened for the opposite party to testify concerning the same transaction or communication. By the provisions of section 828 all persons irrespective of interest are made competent witnesses unless expressly prohibited from testifying. Sarah Scully, therefore, would have been a competent witness to testify to any personal transaction had between her decedent, Thomas J., and John Scully, deceased. The transactions, however, which she was called upon to testify concerning were had with John Scully after her husband’s death, and it is claimed that she was incompetent to testify concerning them because John Scully was a deceased person through whom the defendant claimed title to the fund. By her answer the defendant claimed no title whatever but simply attempted' to justify her acts in withdrawing the deposit which stood in the name of herself and the plaintiff Sarah, because she was directed so to do by John. The plaintiff did not claim title through John, nor did the defendant, and, therefore, he was not a deceased person through whom either party claimed title to the fund in controversy. According to the plaintiff’s claim, in the course of her administration as administratrix of her husband’s estate his father, upon whom she relied, advised her to withdraw the money which was deposited in her husband’s name and place it on deposit in the name of herself and this defendant, subject to withdrawal by either, not because he himself owned it and wanted it so deposited, but for convenience only. After the money was so deposited this defendant withdrew it and placed it beyond the reach of the plaintiff, and because of such act by the defendant this action in conversion is brought. The defendant justifies on the ground that she obeyed her father in doing what she did. The defendant does not claim that she owns or ever owned the money, or that she obtained title to it through her father or anybody else. Of course she does incidentally claim that her father had a right to say what should he done with the money because it belonged to him and not to Thomas. Nevertheless, I fail to see how John Scully is a person through whom the defendant claims title in such a sense as to prohibit *366the plaintiff, who is acting in a fiduciary' capacity in the settlement of her husband’s estate, from testifying to conversations which she had with John Scully which led her to withdraw the money and deposit it in the name of herself and this defendant. If, however, there was any error in permitting the plaintiff to testify to these conversations, such error was cured in a very large measure, if not entirely, because the defendant without objection was permitted to testify to the same transactions, giving a different version of what occurred from that testified to by the plaintiff. To be sure, the plaintiff was first sworn and the defendant was testifying in denial of what the plaintiff had testified to^ but no unfairness resulted because the version of each side was before the jury.
Upon the first ground indicated, however, I concur in a reversal of the judgment and granting a new trial.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.