The issue in this proceeding for an accounting is the sufficiency of the competent evidence to sustain the claim of the administratrix that certain securities were given to her by the intestate during his lifetime. I agree that there is sufficient evidence to sustain the finding of a gift of bonds of the town of Windsor, Hotel San Remo, $8,000 of New York city bonds, $10,000 Northern Pacific 3’s, and $10,000 of Central of Vermont bonds.
To sustain her contention with respect to the remainder of the securities, the administratrix must rely upon her own testimony of transactions with the decedent. It is not questioned that this testimony is barred by section 347 of the Civil Practice Act unless the provisions of that section were waived by the objectant. Upon the hearing before the referee the administratrix was examined to show her present possession of the securities. Under the reasoning of Clift v. Moses (112 N. Y. 426) I believe that this examination did *19not open the door to testimony of personal transactions with the decedent.
The administratrix claims further that the bar of section 347 was waived by a prehminary examination of the accounting administratrix under the provisions of section 263 of the Surrogate’s Court Act. That examination was held before objections were filed and thus before any issues were formulated or any referee appointed. It was in the nature of a complete inquisition of the administratrix. If it had been offered in evidence on the trial by the objectant, it would necessarily have opened the door to testimony by the administratrix of her transactions with the decedent. It was not offered by the objectant, h’owever. The learned surrogate has held that every prehminary examination under section 263 becomes automatically a part of the record upon the trial of issues subsequently formulated even though it may never be offered by either party and that, therefore, interrogation of the accountant by the objectant on such a prehminary examination necessarily waives the bar of section 347. None of the authorities rehed on by the surrogate justify this conclusion.
In Ogilvie v. Ogilvie (1 Bradf. 356) the contestant- offered the testimony in evidence on the trial.
Geer v. Ransom (5 Redf. 578) concerned merely an order of the surrogate directing examination upon condition that the testimony be regarded as taken in the contested accounting. It did not hold that testimony otherwise taken under the predecessor of section 263 must necessarily be regarded as taken on the trial of the contested accounting.
In Cole v. Sweet (187 N. Y. 488) and in Matter of Cozine (104 App. Div. 182) the testimony rehed on to waive the bar of section 347, or its predecessor, was taken on the trial itself.
The chief rehance of the administratrix is on a statement in the opinion of Pound, J., in de Laurent v. Townsend (243 N. Y. 130,133): “ The rule as to waiver is, therefore, to be found in section 829, Code of Civil Procedure, now section 347, Civil Practice Act, and not elsewhere. If defendant had proceeded to the trial of the issue of title in Surrogate’s Court, she would have been competent to testify in her own behalf after the plaintiff had opened the door by examining' her as to the same transactions.” It is argued from this that by analogy an examination under section 263 of the Surrogate’s Court Act similarly waives the bar if issue is subsequently joined and determined in the Surrogate’s Court. I believe this conclusion is fallacious and fraught with the gravest danger in the administration of estates. Judge Pound was specifically referring to a discovery proceeding. In such a proceeding the testimony relating to the assets is a component, integral part of the trial *20of the issue of title. Obviously it would be unfair in what is essentially one trial on the merits to interrogate the claimant and then deny to the claimant the right to tell the whole story. But section 263 of the Surrogate’s Court Act differs essentially from a discovery proceeding. In the first place it relates to an examination only of a fiduciary. It furnishes a mechanism by which a party in interest can properly elicit information of a fiduciary’s conduct of a trust in order to determine whether objection to the account of the fiduciary shall be filed. It is in no factual sense a part of the record of the trial of the issue raised by objections subsequently filed. In the present case the issues raised by the account and the objections were sent to a referee for trial. Until the administratrix referred to this examination under section 283 the referee was ignorant of its existence. It is perfectly just to give to a beneficiary a preliminary examination of a trustee to determine under what claim of right a fiduciary is asserting title to property'of the decedent; to penalize the beneficiary for making this inquiry before issue was joined by holding that the bar of section 347 is waived after issue is joined is unduly to smooth the path of a fiduciary in the assertion of a claim of gift from the decedent.
The statute interpreted in the light of these considerations requires no such construction. Section 347 begins with the phrase “ Upon the trial of an action or the hearing upon the merits of a special proceeding.” That phrase qualifies the entire first sentence of the section. It certainly determines when a person “ shall not be examined as a witness ” and it equally affects the waiver clause — “ except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf.” Assuming that where the administrator is examined not in his own behalf, but in behalf of the contestant “ upon the trial of an action or the hearing upon the merits of a special proceeding,” the door would be opened to full testimony from the administrator on his own behalf, it still remains that this result cannot follow under the provisions of section 347 unless the testimony is elicited “ upon the trial of an action or the hearing upon the merits of a special proceeding.” A preliminary examination of the accountant before issue joined is no more a “ hearing upon the merits of a special proceeding ” than an examination before trial is testimony “ upon the trial of an action.”" (Farmers’ Loan & Trust Co. v. Wagstaff, 194 App. Div. 757; Bambauer v. Schleider, 176 id. 562.)
For these reasons I dissent from the affirmance of the decree in so far as it awards to Mrs. Van Volkenburgh title to the securities other than those above enumerated which were shown by independent evidence to have been given to her.