Baker was not examined on his own behalf. He was called by the plaintiffs and examined on their behalf. They had a right to his testimony unless they were “ a party succeeding to his title or interest.”
They did not succeed to his title or interest. He did not transfer or assign his title to them. They claimed that. Mrs. Houseworth gave to them the property in dispute, therefore they took (according to their claim) directly from Mrs. Houseworth and not by succession to Baker. They claimed that he was the mere custodian of the property, the title to which passed absolutely to them from Mrs. Houseworth. On the contrary Baker claimed that the gift was mortis causa.
The plaintiffs wished to prove by Baker that Mrs. Houseworth gave to them the property in question; not that she gave it to Baker and that to his title they had succeeded. While, therefore, Baker was not competent in his own behalf, yet he was competent for the plaintiffs against the defendants. If the plaintiffs claim was correct, Baker would have to pay to them all the property, notwithstanding his appropriation of part of it under subsequent directions.
But, in my opinion, the gift was one mortis causa, and, therefore, I concur in the result of the foregoing opinion of my brother Boardman.
Judgment reversed, new trial granted, costs to abide event.