#### Morgan, Appellant, vs. Henry, Executor, Respondent

*May 16*

June *19, 1902.*

*Witnesses: Transactions with person since deceased.*

Sec. 4069, Stats. 1898, prohibiting a party from being examined as a witness in respect to a transaction or communication by him personally with a deceased person in certain circumstances and with certain exceptions, includes any communication or transaction between a third person and such deceased person in the presence of such party, participated in by the latter, the third person being only a medium of communication between such ' party and such deceased person.

[Syllabus by Mahshall, J.]

*28Appeal from a judgment of the circuit court for Buffalo *county: John*K. Parish, Judge.

*Affirmed.*

Action, against the estate of Robert Henry, who died in 1899. March 14, 1900, plaintiff, the deceased’s daughter, filed her claim, in the county court for Buffalo county, for $1,825. She alleged that it was a balance of principal and interest for money deposited with her father, to be loaned, at various times commencing in 1810 and ending in 1878. Subsequent to the filing of the claim a bill of particulars was filed, acknowledging payment of $500 as of December 8, 1881, leaving the balance due somewhat larger than that claimed in the original proof. The executor, by answer, objected to tire claim, put the claimant to her proof as to each and every item thereof, and pleaded the statute of limitations, particularly sec. 4222,' Stats. 1898. The issues thus formed were decided in the county court against the claimant, and she appealed to the circuit court. On the trial there the proof in support of tire claim consisted of the evidence of several persons as to the deceased loaning $400 in 1877 or 1878, stating at tire time that it was his daughter’s money; the evidence of one witness that he saw the claimant give deceased money she earned in 1873 teaching school; the evidence of a witness as to Mr. ITenry acknowledging in 1890 or 1891 that he had his daughter’s money for investment; and the evidence of tire claimant that she gave the various sums of money mentioned in her bill of particulars, at about the times therein mentioned, to her mother, to be deposited with her father, all three being present on each occasion, and that she saw her mother hand the money to her father.

At tire close of claimant’s evidence the court on motion of defendant’s counsel directed a verdict in his favor. Judgment for costs was rendered accordingly, aard the claimant appealed.

For the appellant there was a brief by *Vesper*Morgan, *29attorney, and *8. G. Gilman•,*of counsel, and oral argument by *Mr. Gilman.*

*Thao. Buehler*and *Edward Lees,*for tbe respondent.

MaRSiiall, J.

It will be noticed from tbe statement tba£, except as to $400, there is no evidence in tbe record to' estab-lisb tbe amount of appellant’s claim other than ber own, and tbat sbe acknowledged payment of a sufficient sum to cover such amount with interest. Her evidence was objected to under sec. 4069, Stats. 1898, which provides tbat

> “No party . . . shall be examined as a witness in respect to any transaction .or communication by him personally with a deceased person ... in any civil action or proceeding in which tire opposite party derives bis title, or sustains his liability, to the cause of action from) through or under such deceased person, . . . unless such opposite party shall first be examined or examine some other witness in bis behalf concerning some transaction or communication between tbe deceased . . . and such party, . . . or unless the testimony of such deceased person given in his lifetime ... be first read or given.in -evidence by the opposite party; and then . . . only in respect to such transaction or communication of which testimony is so given or to the matters to which such testimony relates.”

It is conceded that the door was not opened here, by any proceeding on the part of respondent, to permit appellant to testify, and that her evidence, if'it related to transactions dr communications with the deceased personally, was improperly received.

It seems that appellant started out in the trial to testify directly to personal transactions with her father, but met with the bar of the statute. At that point a question was asked of her by the trial judge, suggesting the idea that if, in depositing money with her father, she used the hand of a third person, though all concerned in the affair were present, she might testify to the transaction. Upon that suggestion *30being made, sbe promptly testified that in each instance when money passed from her to her father it did so through the medium of her mother, all being present on each occasion from the time the money left her hand till R reached that of her father. The learned court seems to have supposed that the intermediary in the transaction, though used as a mere means of immediate transmission of the money from appellant to her father, prevented the bar of tbe statute being applied to exclude her evidence. This court ruled to the contrary in *Brader v.*Brader, 110 Wis. 423, 85 N. W. 681. Independently of authority, it would seem that, — since the act of appellant in handing the money to her mother to be instantly handed to her father must have been accompanied by expressions of her wishes in the matter’, either directly, to her fattier or to the mother to be in turn communicated to him, she being a mere echo, as it were, of appellant, — it would he a travesty upon the statute to say that the transaction was not, to all intents and purposes, personal between her and her father. The learned circuit judge, iu overruling the objections to her evidence, probably had in mind the rule that a party circumstanced as she was may testify to a transaction between the deceased and a third person *(Watts v. Warren,*108 N. C. 514, 13 S. E. 232; *Farmers’ & T. Bank v. Greveling,*84 Iowa, 677, 51 N. W. 178), overlooking the fact that such evidence is permitted only upon the ground that the transaction is strictly personal between the deceased and the third person; that the rule does not apply where the party testifying participated in the transaction by words or acts or by presently influencing the communications or transactions. *Brader v. Brader, supra.*Here, according to appellant’s testimony, she was an essential factor in the transactions to which her evidence related. She instructed her mother, in her father’s presence, what to do with the money as it was handed to the former, and she instructed her father, either directly or through her mother, *31what she desired him to do with. it. Everything the mother did must have been by way of carrying out the wishes of appellant manifested at the time and as a part of the transaction. Under those circumstances, as we have seen, the bar of the statute applies. The evidence of appellant should have been excluded. In that view no evidence was produced to establish her claim, and the verdict was properly directed.

*By the Court.*— The judgment is affirmed.