Matter of Eysaman, 113 N. Y., 62. that of Barse. At the time this evidence was admitted, it appeared that Ware had been present during the whole interview, during which the will was alleged to have been executed, and had, confessedly, taken a part in its subscription by the testator. Ware and Sharer were the only persons then present, and Ware supported the testator upon the bed in his arms by the testator's express request, while Sharer guided the hand upon similar request, and assisted Eysaman in subscribing his name to the will. It cannot be doubted that the request to Ware, and acquiescence and participation in the act of the testator in subscribing the will, was a personal transaction and communication between him and the testator within the meaning of the statute. Such must have been the understanding of the proponents, for they voluntarily omitted to examine Ware in chief as to the signing of the will, but confined his evidence to the publication and attestation which followed the testator's subscription. This was claimed by them to be competent as relating to another transaction in which he took no part. We think it was error to admit this evidence. The act of executing the will, although consisting of several incidents, constituted but one transaction, and derived its efficacy as a valid execution from the performance of each requirement of the statute. The transaction was continuing and related to but one subject, viz., the execution of the will. A participation by a person in any of the material acts required to complete its valid execution made the transaction one between the testator and that person. Ware was present from the subscription to the publication and attestation, and it cannot reasonably be held that he did not participate in the execution of the will. [A ruling on another point omitted.] Judgment reversed. NOTE.-In Matter of Dunham's Will, 121 N. Y., 575 (obscurely reported), the executor (being also a pecuniary legatee and a residuary legatee) propounded the will. A codicil, propounded by a legatee under the codicil, if proved would reduce the residuary bequest. The executor was offered as a witness in his own behalf to testify to conversations of the testator with the proponent of the codicil, and this was claimed to be not within the spirit of the statute, but rather within the exception, because the executor was testifying in his own behalf.-Held, incompetent. Matter of Eysaman, 113 N. Y., 62. GRAY, J. [passing on the point, said]: The ground for the ruling is, that communications in the presence of the witness are deemed to be made to him. While the ruling may be said to be stretched to the extremest tension, it has the merit, possibly, of being in furtherance of justice. The evidence is intended to work here against the respondent, who derives her interest under the testator's codicil, and whose lips are sealed by the law as to the matters; and to permit a witness, so much interested as this one was in the amount of the estate ultimately distributable, to testify to things said and done by testator, though with others, but while he was present, with the only supposable purpose of affecting the interests of the respondent, would certainly seem to be giving an undue advantage to the one as against the other. This is certainly true, if the evidence sought to be elicited is material in its bearing upon the question of restraint or influence upon testator, or upon his disposing strength of mind; while, if it is not material, the exclusion of the evidence has worked no prejudice to the appellant, and, hence, would not require a reversal for error. This section of the Code offers considerable difficulty, in the endeavor to give to its provisions a reasonable and just interpretation; and each case, as it arises, may, in its circumstances, control the application of the rule intended to be established by the Legislature, It suffices, as to this case, to hold that within the authorities cited by me the evidence was properly excluded. (The cases cited were Holcomb v. Holcomb, 95 N. Y., 316, and Matter of Eysaman, 113 N. Y., 62, both reported supra.) In Smith v. Ulman, 26 Hun, 386, an action for partition between heirs-at-law of Frederick Ulman, deceased, defendant William Ulman was sworn as a witness in his own behalf, and was permitted to testify to a conversation between his father and one Race as follows: "Father told Andrew Race that he had made a bargain with me to come and take care of him during his life, and that he had told Race's wife that she could stay a year according to agreement. Race said the work was rather hard, and he would rather leave right away. He told Race I was to come with my family and take care of him during his life-time. I took some part in the conversation; father commenced it. I told Race he could stay, and he said he would not remain between father and child." From a judgment for defendant entered upon the report of a referee plaintiff appealed to the General Term. The General Term reversed the judgment. OSBORN, J. [after stating the facts]: Now, it would seem that Race and his wife had been living on the place prior to, and were so living at the time of the conversation. The objection was that this evidence was inadmissible under section 829 of the Code, as a conversation or personal transaction with the deceased. We are aware that the courts have held that a party disqualified under this section to swear to a conversation or transaction between Matter of Eysaman, 113 N. Y., 62. himself and the deceased, may do so when the conversation is between the deceased and a third party, which he may see or hear and in which he in no manner participates. In the language of BOCKES, J., in Holcomb v. Holcomb (20 Hun, 159), after a careful review of all the cases, "If the transaction be one wholly independent of the witness, neither induced by his solicitation or supported by his action, one with which he in no way interferes or joins, it cannot be one of a personal character as regards him." But in this conversation the defendant did participate. He swears distinctly that he took some part in it. He states some things he said, but does not pretend that it was by any means all that he said. But if he said nothing more, it was still inadmissible. The deceased was speaking of the contract between himself and the witness; of the bargain that had been made between them. This was in the presence and hearing of the witness. Suppose the father had lived many years, and the value of the property was entirely inadequate to compensate for the care and maintenance bestowed, so that a claim against the estate could have been established for a much larger amount, and he had undertaken to make such a claim, which was resisted by the estate, on the ground that he had made this agreement, and was entitled to nothing more, would not this evidence have aided, and if the representatives of the estate believed it, have entirely defeated the allowance of such claim? If he had remained entirely silent, would it not have been treated as an assent on his part to the agreement as thus stated by the deceased to the witness Race? Clearly so. If a party stands by and hears another state over an agreement in which he has an interest; if not true, and it is to his prejudice, is he not bound to speak at once, or forever after keep his mouth closed? But here defendant admits that he went farther than to remain silent, and impliedly admitted that the agreement as stated was correct, and that he was willing to carry out the agreement which his father had made with Race and his wife; in a word, it is a conversation in which all three participated. The deceased stated the agreement to Race. Race then made his statement, and the defendant William assented in express words to it. As before stated, this was clearly inadmissible under the section above referred to, and in direct violation of its spirit and meaning, as well as its express language. In Lane v. Lane, 95 N. Y., 494, the probate of a will was contested by the heirs-at-law. It appeared that through partial paralysis of his vocal organs, the testator, at the time he executed the will, was unable to utter words, but he made sounds intelligible to those familiar with him, and signs, which, to some extent, anyone could interpret. His wife went with him to the house of the scrivener who drew the will. She was executrix and legatee.-Held, that she was incompetent to testify to anything said by her to the testator, or to what he communicated to her or others, in reply. Note on What Transactions are Protected. NOTE OF RECENT CASES ON WHAT TRANSACTIONS Arkansas: Nunnally v. Becker, 52 Ark., 550; s. c. 13 Southwest. Rep., 79 (in an action for conversion against an administrator, plaintiff cannot testify as to the delivery of the property to deceased). Florida: Holliday v. McKinney, 22 Fla., 153 (in replevin, plaintiff cannot testify as to deceased's handwriting to establish his signature to a bill of sale). Lewis t. Meginniss, 30 id., 419; 12 Southern Rep., 19 (an agent to establish his commissions may testify as to the sums of money collected for a deceased person, and what would be a reasonable compensation for collecting it). Indiana; Merritt v. Straw, Ind. App., 1893, 33 Northeast. Rep., 657 (in an action by an administrator upon a note, defendant cannot testify as to deceased's handwriting to establish receipts purporting to be signed by him). Iowa: Sankey v. Cook, 1891, 47 Northwest. Rep., 1077 (opinion as to a deceased's handwriting is not testimony as to a transaction with him). McElhenny v. Hendricks, 1891, 48 id., 1056 (where defendant produced checks to show payment, he may testify that he did not deliver them to another than decedent). Kentucky: Williams v. Williams, 1890, 13 Southwest. Rep., 250 (under Ky. Civ. Code, § 1890, a contestant of a will may testify as to deceased's conduct and conversations). Maryland: Webster v. Le Compte, 1891, 22 Atlantic Rep., 232 (plaintiff may not testify as to the contents of his own letter to deceased, though the administrator fails to produce it after notice). Minnesota: Hall v. Northwestern, etc. Ass'n., 47 Minn., 85; s. c. 49 Northwest. Rep., 524 (plaintiff may testify as to the reading of a letter in deceased's presence; the Minnesota statute applies only to spoken words and not acts of deceased from which admissions may be implied). New Hampshire: Simpson v. Gafney, 20 Atlantic Rep., 931 (in an action for personal injuries which occurred while plaintiff was riding with a person since deceased, plaintiff cannot testify as to her want of knowledge of the horses, peculiarities, etc., as such matters must have been equally within the knowledge of deceased). Sabre v. Smith, 62 N. H., 663 (a party cannot testify as to the contents of a lost letter received from deceased). New Jersey: Mathews v. Hoagland, 1891, 21 Atlantic Rep., 1054 (a party cannot testify as to transactions between deceased and another in which the witness and such person was interested, though their interests were distinct). New York: Wing v. Bliss, 8 N. Y. Supp., 500 (plaintiff may testify that he found a letter on his desk in deceased's handwriting). Spicer v. Spicer, 54 N. Y. Super. Ct., 280 (in a suit to set aside a deed for fraud upon deceased; defendant cannot testify how long the deed remained in his possession). Hard v. Ashley, 117 N. Y., 606; s. c. 23 Northeast. Rep., 177 (where evidence of deced Note on What Transactions are Protected. ent's statements prior to an agreement's execution has been admitted without objection, defendants may testify they relied on the statements; as such testimony does not relate to any matter which deceased could contradict). Heyne v. Doerfler, 124 N. Y., 505; s. c. 26 Northwest. Rep., 1044 (a third person's presence does not render plaintiff's testimony as to a conversation with deceased competent; nor can a nurse testify as to his visits to deceased's house, in an action for services). Matter of McArthur, 12 N. Y. Supp., 822 (an interested witness' testimony as to testator's appearance to show testamentary incompetency is inadmissible); s. p. Matter of Bartholic, 12 id., 640. Harrington v. Winn, 14 id., 612 (to show delivery of goods to deceased, plaintiff cannot testify that F. made entries in a book under deceased's directions and read them aloud to deceased). Myers v. Hunt, 14 id., 471 (plaintiff cannot testify that decedent's note was never paid). Gregory v. Fichtner, 27 Abb. N. C., 86; s. c. 14 N. Y. Supp., 891 (in an action of conversion against an administrator, plaintiff cannot testify as to the contents of a box delivered to intestate through a third person, nor as to the value of the goods). Finton v. Eggleston, 61 Hun, 246; s. c. 16 N. Y. Supp., 721 (in an action for a breach of warranty, plaintiff is incompetent to testify that he left a notice that he was being sued for the land at the house of the deceased vendor). Mortimer v. Chambers, 63 Hun, 335; s. c. 17 N. Y. Supp., 874 (to prove decedent's delivery of notes, plaintiff may testify that they were in his possession before decedent died). Hall v. Roberts, 63 Hun, 473; s. c. 18 N. Y. Supp., 480 (to disprove notice by decedent to him, plaintiff may not testify that he had received no information from any source). Martin v. Hillen, 21 N. Y. Supp., 309 (in an action against a husband for the conversion of his deceased wife's bonds, he cannot testify that he did not know that his wife possessed any property, except a monthly payment). McMurray v. McMurray, 63 Hun, 183 (a mortgagee cannot testify as to the non-payment of the mortgage by the deceased mortgagor). Hard v. Ashley, 18 N. Y. Supp., 413 (neither of two defendants can testify as to what he heard decedent say to the other concerning both defendants' joint rights). Matter of Bernsee, 17 id., 669 (a devisee present at the execution of a will may corroborate an attesting witness). Matter of McCarthy, 20 id., 581 (evidence as to testator's physical condition when the witness reached his home and as to whether he left his bedroom after her arrival, is not objectionable as relating to a transaction or communication with a deceased person). Van Vechten v. Van Vechten, 47 State Rep., 511; s. c. 65 Hun, 215 (rule applied, in an action brought to have a deed declared a mortgage, to exclude letters written by defendant to the original grantor. and found in his trunk after his death, and the indorsement on a note from the grantor to the defendant, found in the same place, which defendant claimed to have made on the note at the time of the conveyance to him). North Dakota: Hutchinson v. Cleary, 1893, 55 Northwest. Rep., 729 (a defendant is prohibited from testifying as to a conversation with plaintiff's intestate, though decedent's agent was present at the time the conversation took place). North Carolina: Cornelius v. Brawley, 109 N. |