It seems to be settled in this court, that under section 399 of the Code (in force at the time of the trial), the testimony of Mrs. Gifford was inadmissible. She was entitled to a certain legacy' { under the will of the deceased. Hence she was interested in the event of this action, and could not testify as to personal transactions with the deceased against his executor. It is true that her interest was adverse to that of the person calling her as a witness. But it has been decided that this section makes no exception on that account. (LeClare v. Stewart, 8 Hun, 127; Howell v.
Taylor, 11 Hun, 214; Cornell v. Cornell, 12 Hun, 312.)
The judgment must he reversed, reference discharged, and a new trial granted; costs to abide the final order of the court.
Present — Learned, P. J.; Boardman and Westbrook, JJ.Judgment reversed; new trial granted; reference discharged; costs to abide event.