Defendants'’ Appeal.
After the death of Mary 0. White, was her executor entitled to the money for which the certificate of deposit had been issued by the bank? To this question a negative answer must be givendf she came into possession of the money by virtue of her husband’s will, because his property, real and personal, was given her “during her widowhood.”
" The plaintiff says that upon the death of Mrs. White the. money became a part of the personal estate of his testator. He contends that his father and mother, both infirm, needed assistance and protection; that he had a conversation with J. B. Mitchell (who had married his sister) in reference to their condition; that he had previously received money from the farm and had'put it in the bank first to the credit of his father and afterwards about two years before his father’s death to the joint credit of his father and mother; that in consequence of their conversation he and J. B. Mitchell went to the bank a month after the death of- his fáther and had the account credited to Mfs. White; and that all the money thus deposited had been derived from his father’s farm. The plaintiff offered evidence in support of these contentions and the defendants excepted on the ground that the evidence is prohibited by section 1795 of Consolidated Statutes.
This section disqualifies any party to an action or any person interested in the event of the action, or any one under whom such party or person derives title, to testify in behalf of himself, or in behalf of the person succeeding to his title or interest, against the personal representative of a deceased person, or against the committee of a lunatic, or against any one deriving title or interest through such person or committee, concerning a personal transaction or communication between the *92witness and tbe deceased person or lunatic. Bunn v. Todd, 101 N. C., 266. Tbe purpose is to exclude evidence of a personal transaction or communication between tbe witness and a person wbo by reason of death or lunacy cannot be beard. Abernathy v. Skidmore, 190 N. C., 66; Haywood v. Russell, 182 N. C., 711; Reece v. Woods, 180 N. C., 631.
Tbe defendants’ first twelve exceptions are addressed to evidence wbicb does not involve any personal transaction or communication between the witness and bis mother or bis father; it relates to conversations or transactions between tbe witness and tbe defendant, J. B. Mitchell, and between tbe witness and tbe officers of tbe bank, all of whom are living. There is no evidence or suggestion that 3L P. White or bis wife bad anything to say in reference to tbe recited transactions or indeed that either one of them knew what L. T. White and J. B. Mitchell bad done. On cross-examination tbe defendants elicited evidence that tbe witness acted in behalf of bis father and mother; but it does not appear that either bis father or bis mother bad given him any instructions, or approved or disapproved, or even bad knowledge of, anything be did. In fact bis father bad been paralyzed for about nine years and talked very little. Morever, tbe appellants after bringing out this evidence made no motion to strike out what tbe witness bad previously said. These exceptions therefore must be overruled.
And so as to tbe thirteenth and fourteenth exceptions. Tbe plaintiff admits that after tbe death of her husband Mrs. White was entitled to money derived from tbe sale of tbe crops. Her receipt of this money could not affect tbe question of title to other money owned by her bus-band at bis death and given to her for life by bis will. And on tbe matters in issue it is immaterial whether Mrs. White did or did not devise tbe “remainder of her estate” to tbe witness. This evidence could have bad no material bearing on tbe verdict. Exception 16 relates to tbe judge’s statement of contentions to wbicb bis mind was not directed during tbe trial, and exception 18 to an instruction that tbe plaintiff and tbe defendants could not lawfully agree to a settlement of tbe estate in breach of tbe will unless all tbe interested parties agreed. It is not easily perceived bow tbe appellants could have been prejudiced by these instructions. There are other exceptions to tbe charge wbicb become academic, as it is found as a fact and agreed that tbe verdict includes no personalty except money in tbe bank.
Tbe appellants contend that there is error in the judgment; that Mary C. White was entitled to tbe income from tbe bequest, and that a part of tbe income has been awarded to tbe plaintiff. Hall v. Robinson, 56 N. C., 349; 18 C. J., 945. Tbe plaintiff consents that tbe judgment may be modified so that be may recover interest only from tbe date of tbe widow’s death.
*93A motion was made that the defendant executor be allowed to deduct from the recovery burial expenses and the fee of his attorney ; but these matters were not pleaded or considered during the trial.
The motion for nonsuit was properly denied. The other exceptions are formal.
On the defendants’ appeal there is no error except in the judgment, which is modified and affirmed.
Plaintiff's Appeal.
It was adjudged that the costs be paid out of the fund on deposit in the bank. This part of the judgment is erroneous. The plaintiff having recovered is entitled to his cost. O. S., 1241 et seq.
Error.