majority">Bockes, J.

The facts found by the referee in this case are well established by the proof. That the testator, with a view to aid his brother, the plaintiff, made the purchase of the farm, and that-the latter entered, occupied and improved it, greatly enhanced its value by his own labor and with his own means, and paid all taxes and the interest on the purchase-money to the testator, year after year, under and pursuant to an understanding and agreement between them that the premises should be his on refunding to the testator the purchase-money, admits of no doubt.

The evidence is clear, direct, and' full to those facts. It seems quite probable that the testator did not intend to exact the principal sum, but proposed ultimately to discharge the debt to his brother, but never having done this in a legal and effective way, the referee was right in requiring its payment as a condition of the conveyance. The case of Freeman agt. Freeman (43 N. Y., 34), resembles the one in hand in many respects, and shows that contracts like that found by the referee in this case will be respected and enforced by the court.

The testator was often on the premises; saw the improvements going on; advised them and spoke of them as beneficial to the plaintiff; accepted annual payments as interest (not as rent); said he purchased the farm for his brother; spoke of a bargain with him; said his word was as good as his bond; that all that he wanted was the interest on his money as long as he lived; that, on his decease, the farm would be his brother’s, and that he would give him a deed of it. His omission to give the deed seems to have been occasioned by his *464negligence, and was continued until a just purpose was; frustrated by death, as is often the ease when duty is postponed. Any other construction than that given the evidence by the referee would have been manifestly unjust and inequitable. The acts of the parties through a series of years; the fair and just import of many conversations between them, with their promises and clearly-expressed purposes, combine to give support to the conclusions arrived at by the referee, which in their legal application work out a just result.

But it is insisted that technical difficulties are presented in the case which require a reversal of the judgment. It is urged that the action is against the defendants, personally, and not against them in their representative capacity as executors.

This question is to be determined from the averments in the complaint (Hallet agt. Harrower, 33 Barb., 537; Fowler agt. Westervelt, 40 id., 374). Those averments made a case against the defendants, as executors.

The facts stated and the prayer for relief fully characterize the action as one against the defendants in their representative capacity, and the defendants appeared and answered as executors.

This alleged ground of error is without support. Nor did this action abate, nor was it put in abeyance by the death of one of the three executors.

The right of action and ground of relief here continued against the surviving executors (Lachaise agt. Libby, 21 How., 363; Shook agt. Shook, 19 Barb., 653; Leggett agt. Dubois, 2 Paige, 211; 2 R. S. [Edmd. ed.], 79, sec. 44). The litigation remained against the surviving parties, and the decree could be against them the same as if their co-executors had lived.

A suggestion of the death of the co-executor in the record was all that was necessary. Nor is the objection that there is a defect of the parties well taken. As regards the defendants on the record they must be deemed to have *465waived this objection if it had foundation in fact, because not taken either by demurrer or answer (Code, sec. 148 ; Potter agt. Ellice, 48 N. Y., 321; Lee agt. Wilkes, 27 How., 336). Having taken issue on the facts alleged in the complaint, it became the duty of the referee to try and determine the questions presented on the pleadings. But there was, in fact, no defect of parties. According to the admissions in the answer, it lay with the executors to perform the contract alleged in the complaint and found by the referee; it devolved on them to carry the agreement of the testator into effect. The rights of the testator prior to his decease, and of his executors under his will, were such only as pertained to a vendor under a contract for the sale of lands. The decree against the executors to make conveyance on receiving the balance due on the contract of sale made by their testator, would bind all parties claiming through the latter. It is further insisted that improper evidence was admitted, and it is claimed that the judgment must be reversed by reason of such error. The plaintiff was allowed to testify against such objection to what he heard the deceased testator say to a third party in his presence. He testified that he was present at an interview between testator and Mr. Tefft, from whom the latter made the purchase of the farm, and heard the testator tell Mr. Tefft that he was going to buy the place for him, the plaintiff; that all he wanted was the interest on his money as long as he lived, and that the place was to belong to the plaintiff on his, the testator’s, death. This evidence was objected to as inadmissible under section 399 of the Code, as being a personal transaction or communication between the witness and the deceased. But it was not such. It was a communication of statements made by the deceased to a third party in the witness’ presence. He could testify to such statement. It was so held in Cary agt. White (59 N. Y. 336). And this too, even, although the witness should participate in the conversation, Johnson, J., says: “It must, I think, be regai’ded as settled under the present provision of the Code, *466that the three hundred and ninety-ninth section does not preclude a party from testifying to the statements of a person deceased, made to a third person in the hearing of the witness.”

The learned judge cites Lobdell agt. Lobdell (36 N. Y., 33, 34), and Simmonds agt. Sisson (26 N. Y., 277), in support of his remark. The prohibition contained in section 399 did not reach and cover the evidence objected to; the testimony given by other witnesses was also objected to as prohibited by section 399, but very manifestly there were no grounds for objection.

They were not. parties claiming through or under the deceased in a sense which could exclude the testimony given by them.

But there is another answer to the objection urged against the evidence above alluded to. Strike out all the evidence to which.this objection can with any reason of fairness apply, and sufficient will still remain to afford abundant support to the findings of the referee.

In equity actions the court will look to the entire case, and see whether substantial justice has been done, and when that appears it will affirm the judgment, notwithstanding the admission of testimony which in ordinary actions at law might have necessitated a new trial (Church agt. Kidd, 5 N. Y. Sup. Ct. R., 454; Platt agt. Platt, 2 id., 454; Clapp agt. Fulerton, 34 N. Y., 190). In this last case it is laid down by Porter, J., that on a rehearing in equity the admission of improper evidence on the original hearing, furnishes no ground for reversing the final decision, if the facts established by legal testimony are plainly sufficient to uphold it. So in Schenck agt. Dart (22 N. Y., on page 424), Comstock, J., in remarking.on this class of cases, says : “ That it is the duty of the supreme court to pronounce such a judgment as the competent evidence would justify.”

There exists in this case no ground for a reversal of the judgment, because of the admission of improper evidence. The granting of costs to the plaintiff was, in the sound dis- _ *467cretion of the referee, to be exercised, as it manifestly was here, in accordance with settled rules (Van Riper agt. Poppenhousen, 43 N. Y., 68; Barker agt. White, 5 Abbott N. Y., 124). Whether or not the suit could be sustained, as an action to redeem on the hypothesis that the deed was in the nature of a mortgage to secure the payment of the purchase-money, need not be here discussed.

We are of the opinion that substantial justice is answered by the judgment entered, and that it should be affirmed with costs.

So ordered.

Boardhan and Learned, JJ., concurred.

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