#### Agnes E. Killian, Plaintiff, *v.*Katharine E. Heinzerling, as Administratrix of the Goods, Chattels and Credits of John Schellhase, Deceased, Defendant.

(Supreme Court, New York Special Term,

June, 1905.)

Witness — Disqualification on death of party to transaction — Code Civ. Pro., § 829 — How far disqualification removed by examination before surrogate under § 2709 — Evidence — Sufficiency — Credibility of witness — Executory agreement with deceased person demands clear proof.

Plaintiff claimed to have made an agreement with defendant’s intestate whereby she was to receive his business and chattels used therein, together with $4,000 in bonds wherewith to continue his business for one year; upon the expiration of which, or the earlier death of defendant’s intestate, such property was to pass to her. The court, upon the trial, permitted plaintiff to testify *512to personal transactions had with decedent, reserving defendant’s objections thereto; it having appeared that plaintiff had been examined before the surrogate under section 2709 of the Code of Civil Procedure and, upon such examination, claimed the bonds had been given to her; and, upon the trial of the present action, the plaintiff having claimed that the provisions of said section operated in her favor, so as to permit her to testify to all personal transactions and communications with decedent. Held:

Plaintiff’s contention as to the effect of the provisions ,pf said section cannot be sustained, and her testimony given upon the trial should be stricken from the record.

Plaintiff’s sister testified to statements, made by defendant’s intestate on several occasions, to the effect that he intended giving her his business. Held:

■ After the death of one of the parties, such agreements, whose executory character approximates them to wills but which are destitute of the latter’s safeguards, should be in writing and the writing should be produced or, if based upon parol evidence, it should be given and corroborated in all substantial particulars by disinterested witnesses; and, in view of the relationship existing between plaintiff and her sister, the suspicious fact of her sister’s visits being most opportune and at the psychological moment and the inconsistency of plaintiff having filed a claim against the estate for her wages and disbursements, after intestate’s death, when the theory of this ease could not have been in her mind, the plaintiff should not recover.

Action to compel the specific performance of an oral agreement alleged to have been made by the plaintiff, with the defendant’s intestate.

Edward Miehling, for plaintiff.

Amend & Amend (Alfred J. Amend and John E. Donnelly, of counsel), for defendant.

McCall, J.

This action is brought to enforce an oral agreement alleged to have been made between plaintiff and the intestate, Schellliase, whereby plaintiff was to receive the business of said intestate and chattels used therein, together with money or bonds amounting to $4,000 wherewith to conduct said business upon the consideration that she remain in his (Schellhase’s) employ for one year, or *513in the event of the death of intestate prior to the expiration of a year, then the said property to pass to her at his demise. The plaintiff was a young woman in the employ of John Schellhase, as superintendent and bookkeeper of his upholstery business, conducted at No. 417 Fourth avenue, in this city. Schellhase, according to plaintiff’s proof, was anxious to retire; he had no relatives for whom he cared and desired to return to Germany. ■ The plaintiff alleges that in January, 1904, Schellhase spoke of releasing the premises at No. 417 Fourth avenue for another year, and asked plaintiff to remain with him, as he could not. run the business alone; that plaintiff complained of her eyesight and said she could not promise to stay; that he then said that he would take the lease for a year longer if she would remain, and that at the end of the year he would go to Germany and give her the business. Later on another conversation was had in which plaintiff claims sire was given $4,000 in bonds in order to provide her with capital to carry on the business. This agreement to remain for one year was not carried out, as Schellhase died in April, 1904. The court upon the trial permitted the testimony of the plaintiff to be taken in reference to personal transactions had with decedent, reserving decision on the objection raised by defendant that it was not admissible under section 829 of the Code of Civil Procedure. After the death of intestate the plaintiff was called before the surrogate and examined (as provided for by section 2709 of the Code) in an endeavor to ascertain the location of assets of this estate. The learned surrogate himself drew from plaintiff the fact that she claimed the $4,000 in bonds was given to her by decedent. The section of the Code referred to provides “ that if the witness is examined concerning any personal communication or transaction between himself and the decedent, an objection under section eight hundred and twenty-nine to his testimony as to the same in future litigation is waived.” This provision is claimed by plaintiff to operate in her favor so as to permit her to testify to all personal transactions and communications Avith deceased. This contention cannot be sustained. It- Avould be strange indeed if questions by the learned *514surrogate as to the whereabouts of bonds opened the way for plaintiff to testify to any and all transactions and communications to which she chose to testify and such construction of the statute is not tenable. The same phraseology as is found in section 2109 occurs practically in section 829, where it is provided that if the executor or administrator is examined in his own behalf or interest, the other party may be examined as to the same transaction' or communication. This is in the interest of justice, so that one may not be permitted to testify to something which the other may not dispute or explain. The very purpose of the section itself is to prevent the giving of evidence by one which the other is powerless to’ gainsay, because of the death of the only person who could effectually dispute same. This part of the section has been construed many times, and it has always been held that the party is only permitted to testify to the same transaction or communication about which the executor or administrator has testified. Rogers v. Rogers, 153 N. Y. 343. The testimony of plaintiff is, therefore, not competent or admissible and is stricken from the record. The plaintiff’s sister, however, testified to statements which she on several occasions heard the intestate make, which were in effect that intestate intended giving his business to plaintiff; but she is the sister of the plaintiff and her visits seemed to be most opportune and at the psychological moment, and in cases of this kind such testimony must be most carefully scrutinized. These asserted agreements did not convey anything nor are they claimed to be gifts, as they were not executed. They are like wills, but the persons interested know that the law has placed certain safeguards" around the disposition of a decedent’s property,' and that they must not tread too closely to the line of testamentary dispositions. The plaintiff here is trying to enforce an executory contract, based now only upon the testimony of her sister. I cannot agree to take property away from a person’s natural heirs upon such vague and unreliable evidence. The plaintiff’s sister had the strongest motive for sustaining the plaintiff, and the evidence in the light of the whole case is too improbable for me to base *515judgment upon. As was said by the Court of Appeals in a similar case to the one at bar: *“*Contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them, and in enforcing them, when established, by specific performance. Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. * * * Such contracts are dangerous. They threaten the security of estates and throw doubt upon the power of a man to-do what he wills with his own. The savings of a lifetime may be taken away from his heirs by the testimony of witnesses who speak under the strongest bias and'the greatest temptation, with all the dangers which, experience shows, surround such evidence. The truth may be in them, but it is against sound policy to accept their statements as true, under the circumstances and with the results pointed out. Such contracts should be in writing, and the writing should be producéd, or if ever based upon parol evidence, it should be given and corroborated in all substantial particulars by disinterested witnesses. Unless they are established clearly and are equitable, * * * specific performance should not be decreed.” Hamlin v. Stevens, 177 N. Y. 39. To the same effect are many other cases, notably Mahaney v. Carr, 175 N. Y. 454, and Pattat v. Pattat, 93 App. Div. 103. There is another feature of this case which impressed the court most forcibly. The plaintiff filed a claim against this estate for her wages after intestate’s death and for disbursements incurred by her. The theory of this case could not have been in her mind at that time. This is doubly strange when it is considered that the conversations and transactions, through which she claims, had occurred some of them within a month and all within three months. There are other reasons -which could be urged against plaintiffs prevailing, but the foregoing are so conclusive that the recital of the other reasons becomes unnecessary.

Judgment for defendant.