Cooper v. Burr. to conversations with the deceased, or transactions that existed between them, before the decease, be a witness, for the reason that the deceased can not be called upon the stand to tell her own story. Miss Moore, however, testifies to the same thing, substantially, as the plaintiff, about Miss Cooper's calling for her mother, and she being out, she, Miss Moore, went in her place, and that upon her entering the room where deceased was, the plaintiff said something in reference to her coming, and deceased said, "I know you are a friend of Mary's," or some such expression, and then she took a bunch of keys and gave them to Mary, and said, "I give you these keys and all there is here-all I have, money and all." That is about the substance of it; and that Mary said something about going to market before that, and then the old lady said, "Now you may go to market," and as they were about going out she made a further expression, confirmatory of what had been done, and what she had said before, and that Mary took the keys. Now upon this subject, if this witness has testified correctly as to what occurred, and the deceased Mary Cooper did on that occasion deliver over to the plaintiff the keys to her trunks where her money was mostly kept and to the bureau, and did then tell her, or in effect, that she then gave her all the property she had, and the plaintiff took the keys, and it was designed and intended on the part of Miss Cooper to invest her with the title to the property, then what was done as described by Miss Moore, would amount, I think, in law, to a valid gift, provided she is not mistaken in what occurred, and provided she has not testified untruly. The plaintiff gives other testimony tending to show acts confirmatory of this; that is, the expressions of this deceased person as to her design and intention; and on that subject she calls, in the first place, Miss Mathewson, who had lived in the house some three years, and had left about eight months before this time, and she testifies that she had heard the old lady say that Mary had been a faithful girl, and she was going to leave all her property to her at her death; that Cooper v. Burr. would not amount to a gift. An expression of what she was going to do, would not amount to a gift. But this evidence is offered here, and permitted to be given, merely for the purpose of showing that she had a design to effectuate the purpose before she died, and to strengthen the evidence of Miss Moore, to some extent, as to the fact of the actual gift having been made. Then Mrs. Hart is called, who speaks of some conversations she had with the deceased, of being present on one occasion when something was said about Mary having the keys, and every thing being hers. At all events, she corroborates this idea, that either after or before it was claimed this gift was made, she said she was going to do it, and I think, on one occasion, she said she had given. her all. This is substantially all the evidence of the gift on the part of the plaintiff, with the exception that Mr. Moore, who was called to detail some conversation which occurred between him and the plaintiff, after the death of the old lady, in which it is claimed she made some admissions or statement inconsistent with the idea that the property was hers. Upon cross-examination, he said that at one of these conversations, the plaintiff said that all the property had been given to her, and that Dr. Linsley had threatened her, or made some remark that if she destroyed any of it, she would be sent to state prison. Then on the part of the defendants, they call several witnesses for the purpose of showing that the statement of Miss Moore, and this claim of the plaintiff, that there has been an actual delivery and gift of this property to the plaintiff, is inconsistent with certain statements she subsequently made, about the time or after the death of the old lady. I should have said, however, that the plaintiff testifies that during the time they were attending the funeral of this old lady, or between the time of the death and burial, this Mrs. Lyons, who, it seems, was the neice of this old lady, asked her for the keys for some purpose, to get some linen necessary to be used, and she gave them to her, and she kept the keys afterwards, and rather VOL. XLV. 2 Cooper v. Burr. pushed her out of the door, and locked the door upon herthe door of the room in which was the mass of this property, the gold and silver. The plaintiff says, also, that before they took this property away, she told thein it was hers, that it had been given to her by the old lady before she died. Dr. Linsley is called on the part of the defendants, and he says that some eight or ten days before the death of the old lady, which was a later time than when Miss Moore testifies this property was given to the plaintiff, he told Mary he did not think the old lady would get well, and she says, what will become of me, and he told her they would take care of her, or do something for her; and after her death, I think he said that the plaintiff said Miss Cooper had told her to help herself from the trunks under the bed, and he said don't do so, that if you do you will be guilty of theft. Then Mr. Taylor is called, and he testifies that he had a conversation with the plaintiff after the death of Miss Cooper, with reference to her situation, and he says she said she was bad off and had nothing. Now gentlemen you are to look at these conversations had with the plaintiff, and see whether they are stated accurately-see what was said and done, and give them such force and effect as in your judgment they are entitled to, and consider this question whether Miss Moore has testified correctly as to this statement, and this scene which she describes when she was there. You will look at this evidence. It is in evidence that this property had been taken away from the possession of the plaintiff, and was in the possession of these defendants, and you are to look at these statements, and see whether they have relation to her then apparent condition; whether that is what she meant by it; whether that is a fair inference, or whether she meant to say that nothing had been given to her. It is with this view this evidence has been received, with a claim on one side. that it is inconsistent, and on the other side that it is not necessarily inconsistent with the idea of this property hav Cooper v. Burr. ing been given to her, and taken away by these parties and in their possession; and whether she would be able to claim it or not, and was trying to arrange to get some compensation, or some portion of it for her benefit. You are to look at these statements carefully, and see what they meant, and see whether they are entitled to be taken as admissions that she had no interest in this property, or whether they have reference to the matter as it then stood, that she was left without any thing. Then Mrs. Burr is called; and there is another fact which I should call your attention to, which is, that Mr. Burr, Mrs. Burr, and Mrs. Lyons, are the parties defendants here, as Miss Cooper is the party plaintiff; they are each of them interested in the question of recovery; the plaintiff is deeply interested in obtaining a recovery, and the defendants are equally interested in defeating a recovery. Formerly until within a few years, neither of these parties could have come upon the stand, and been witnesses in their own behalf; no witnesses could have been examined who were in any way intercsted, but the legislature has seen fit to permit parties. interested to be examined, and even permitted parties to be witnesses in their own behalf, leaving it to the jury to dotermine and discriminate. It is no doubt true that this law has a tendency to, and doubtless does, cause the commission of a great deal of perjury, because the interest of witnesses is very likely to prejudice and sway their minds and judgment. It is equally true that a jury upon seeing persons on the stand and hearing their testimony in the case, are able to discriminate and arrive at as correct a conclusion as though these witnesses had not been upon the stand, and perhaps more so; because, after hearing their own story, and hearing the other evidence, it is for the jury to say how much weight is to be given to their testimony. Mrs. Burr testifies, in relation to these keys, that they were voluntarily given up, and that Mary had them on one or two occasions, and gave them back. Mary's version is different from that. Mrs. Lyons testifies to the same thing upon the subject of these keys Cooper . Burr. both of these witnesses differing from Mary, and they are all interested in this case. It is not, perhaps, material to the case whether the plaintiff at that time kept the keys or delivered them to Mrs. Lyons. It would not settle the question of the right to the property, one way or the other; but it may have an influence. as indicating whether or not she then understood that the property was hers or not. Then you are to take into consideration the condition of things at this time. Here was this old lady, who had been in some degree standing in the relation of mother to this plaintiff, and she as daughter to her, as claimed on the part of the plaintiff; but the old lady was dead in the house, and it was a time of affliction, and it was perhaps not a proper time for settling the right of property which had been left to her. We should not ordinarily expect that at such a time the subject of a division of the property, or who was to have it, would have been the first idea in the minds of the several parties. Hence we are to look at what may have occurred on this occasion, with a little more bearing of favor either as to one or the other, than we should look at it in calmer moments. Now Mrs. Burr testifies, and so do Mrs. Lyons and Miss Eliza Lyons, substantially the same, that the next day after the funeral, when they were taking away this property, Mary pointed out certain articles as hers, which she had purchased; but they say she did not make any claim to this other property as being hers. You have heard this testimony, and you have heard the testimony of the plaintiff, and the testimony of Mrs. Hart. She testifies she told them the property had been given to Mary, and it was hers. If you come to the conclusion that a gift had been made, a valid gift such as the law will recognize; that she had the property and controlled it as her own, even though the old lady resided in the house with her, and although she may have had the keys subsequent to that, it would not change the title. If any thing was done to change the title, |