
    H. Harrington et al., Appellants, v. J. Harrington et al.
    
    To admit depositions taken in one case to be read in another, X. The parties must be the same, or in privity. 2. The question in controversy must be the same. 3. It must appear, that had the testimony been different, it would have been prejudicial to the party introducing it. 4. That the verdict and judgment rendered in one case would be evidence in the other; and 5. Of the legal existence of the first suit.
    There was a suit at law in favor of Hezeldah Harrington as executor against Jephthah Harrington individually for the recovery of certain negroes, part of the estate. Jephthah Harrington in his own right, and as administrator, and John Harrington instituted a suit in chancery against Hezeldah Harrington and all the other legatees under the will; and to establish a prior gift of said estate by deed introduced the depositions taken in the suit at law.
    By the Court. John Harrington was not so interested in the first suit as to make the depositions admissible, because his rights were not in litigation. It is true, he claims under the .same instrument of writing, but he claims different property, and the adjudication on that instrument did not conclude him.
    Courts of equity will interpose to correct palpable mistakes for the purpose of carrying into effect the intention of the parties, but the proof of that intention must be clear beyond a doubt.
    APPEAL from chancery.
    This cause is amply stated in the argument of counsel and opinion of the court.
    Montgomery, for the appellants.
    Hughes and Buckner, contra.
    
    The appellees filed their bill in the superior court of chancery; charging that Sarah B. Bradford, on the 9th day of January, 1823, made and executed and delivered the following deed of gift, to wit:
    To all-whom it may concern: Know ye that I, Sarah B. Bradford, formerly Sarah B. Coob, of the state of Mississippi and county of Amite, for and in consideration of the good will and affection I have and do bear towards my nephew Jephthah Harrington, of the said state and county aforesaid, have given and granted, and by these presents do freely give and grant unto the said Jephthah Harrington the following property, to wit: Jude, a negress, Daniel, Sandy and Henry, her son, Joe, Jesse, Rebecca, Louisa, Bill and Rachel, also Dick and Harry, with all the issue or offspring, have given and granted unto the said Jephthah Harrington, his heirs and assigns forever. I also give unto Gabriel Harrington* of the county and state aforesaid, property, viz: a yellow boy named Toney, a negro girl named Fanny, one do. Hasty, and a boy named Jupiter, unto the said Gabriel Harrington, his heirs and assigns forever. I also give mito young John Harrington, Qf the county and state aforesaid, a negro woman named Blickers, with all her issue, and her two sons, David and Jackson, with all the land I now possess, or may possess'at the time of my decease, with all the household goods and chattels in my dwelling-house, unto him the said young John Harrington, his heirs and assigns forever. The above named property at my decease, and not before, an inventory signed with my own hand and bearing even date, to have and to hold the aforesaid property above described and designated, unto the above named Jephthah Harrington, Gabriel Harrington, and .young John Harrington, for their proper use, absolutely, without any manner of condition. In Avitness whereof I have hereunto set my hand and seal this 9th day of January, 1823.
    SARAH B. BRADFORD. [SEAL.]
    Signed, sealed and delivered in presence of
    Robert Liles, her
    Susanna x Liles, mark.
    Azella Martin.
    Which deed was proved and recorded as required by laiv, in Amite county, and the copy which is the exhibit, taken from the record. The deed Avas not recorded Avithin three months, but a short time after.
    
      The bill also alleges, that at the execution of the deed of gift, it was the clear and expressed intention of the donor to convey the said negroes absolutely in fee to the complainants, reserving a life estate in the same to herself, and that such has not been the effect of the instrument or deed of gift. That said complainants under said deed of gift took possession of the negroes, and have retained a part of them ever since. That afterwards the said Sarah B. Bradford, made a last will and testament, and departed this life, and by said last will and testament, pretended to dispose of the negroes, in the deed of gift mentioned, to other persons, to wit, to the defendants and to the complainants, except John Harrington, who is not a devisee; that after the death of Mrs. Bradford, the defendant, Hezekiah Harrington, who was appointed an executor by the said will, pretended to prove the will, and took upon himself the execution of the same, and brought an action of detinue against the said Jephthah Harrington, to recover the negroes in the deed of gift aforesaid mentioned, and said Harrington, in defence, relied upon the said deed of gift, and offered the same in evidence, but the court "refused to permit the same to be read to the jury. Having decided that said paper, purporting to be a deed of gift, was in fact a last will and testament, and was revoked by the subsequent will, and a verdict and judgment was rendered against said Jephthah, upon which execution issued.
    The complainants aver, that they are the persons who are entitled to a portion of the estate under the will, and that the said estate is not indebted. They further allege, that five of the negroes were taken out of their possession, and sold under a judgment against said Hezekiah Harrington, executor of Mrs. Bradford.
    The bill prays that the said deed of gift be reframed, so that it may correspond with the intention of the donor, and the title to the negroes declared to be in the complainants, or that an account of the administration of the said Hezekiah Harrington be taken, and partition of the balance, and that the amount due to the complainants be deducted from the judgment aforesaid, and an allowance for the value of the five negroes as before stated and for general relief.
    The answer of Hezekiah Harrington admits all the allegations of the bill, except those in reference to deed of gift, sale of the five negroes under execution, and tire possession of the negroes under the deed of gift. As to the deed of gift, he knows nothing of his own knowledge, but had frequently heard Mrs. Bradford in her lifetime assert, that she had made no such deed. As to the sale of the five negroes under execution, the answer insists, that if any such sale took place, it was fraudulent because of the then situation of the negroes, denies that the negroes were taken possession of under the deed of gift, but admits that after the death of Mrs. Bradford, the complainant Jephthah got possession of the negroes, and has had possession ever since by continued litigation. That it is not true that Mrs. Bradford was not indebted, that he had paid large sums for the estate.
    The other answers are in affirmance of the answer of Hezekiah Harrington.
    The deed of gift, will, record of the recovery under which the five negroes were sold, and the record of the recovery in the action of detinue, are all made exhibits to the bill.
    The bill of exceptions, in the record in the action of detinue,, contains the deed of gift.
    Before the hearing the counsel for the complainants gave notice to the counsel for the defendants, that at the hearing, the originals- or authenticated copies of the depositions of Robert Liles, Joel Predgeon, Cynthea Wills, Nancy East, Richard Albritton and Thomas James, which had been taken in the action at law, would be offered in evidence.
    At the hearing said depositions were offered in evidence, and were objected to, but the court permitted them all to be read, except those of Cynthea Wills and Nancy East, which were excluded.
    At the hearing the counsel for the defendant objected to reading the exhibits but the court overruled the objection.
    At the final hearing, the chancellor pronounced a decree perpetuating the injunction, and reforming the deed of gift, as asked for by the bill.
    
      The defendants below appealed, and now insist that the decree should be reversed.
    1. Because the court erred in permitting the deposition of Robert Liles, Joel Pridgeon, Richard Albritton, and Thomas James to be read at the hearing.
    2. This objection is noticed before stating the testimony of the witnesses, because, unless the depositions can be read, there is no testimony.
    Did the chancellor err in permitting these depositions to be read? it is believed that he did not. The objection is resolved into two positions.
    ■ 1. That the depositions were taken in a suit between parties different from the parties to this record.
    2. The record is not shown in connection with the depositions.
    1. This proposition seems to go on the ground, that depositions cannot be read in one suit which have been taken in another, unless the parties are identical. This is not the rule. It is true, that such is the general principle, but it is subject to limitations and exceptions.' The following is believed to be the substance of the rule with the limitations and exceptions. The parties must be the same, or there must be a privity in blood, estate, in .law, or in deed, between the parties in the one suit and in the other; or that a party to one suit, who was not a party to the other, was in such a situation during the pendency of the suit to which he was not a party, that he could have made himself a party, so as to bar an opportunity of cross-examining the witnesses. See 1 Starkie on Ev. 4th Ed. 189, 190,191, 192, 193; 1 Phillips on Ev. 226,232, 268; 4 Comyn’s Digest, 203.
    Let us see whether these depositions cannot be brought within this rule or its limitation. With the exception of John Harrington, the parties, both complainants and defendants below, were parties to the action at law, or were privies in estate. They all claimed a portion of the property in litigation, or might claim under the will of which the defendant, Hezekiah Harrington, was executor, and the action at law was prosecuted by the executor against Jephthah Harrington, for the recovery'of the property, a part of which each might claim under the will. It is well settled, that the goods and chattels of a testator, are vested in the executor, until distribution, and if it is now, it is for the first time contended, that a devisee or distributee can maintain any action in reference to the title or possession of the goods and chattels of a testator or intestate, until the property is delivered over in pursuance of the directions of the will, or distributed. The devisee has a title subject to the title of the executor, and for any injury to the property, an action in the name of the executor only can be maintained. The executor has possession, and right to the possession, and the devisee has title dependent upon the determination of the estate of the executor. The one is the owner of a particular estate, and the other of the remainder. There is a direct privity. Privies are defined to he “ Those who are partakers, or have an interest in any action or thing, or any relation to another.” Jacob’s Law Dictionary, tit. Privies.
    
    The devisees are partakers of, and have an interest with the executor of the thing devised. They are, therefore, privies in estate.
    I have proved that all the parties to this suit, except John Harrington, were partakers of, or had an interest in the thing which was in litigation in the action at law.
    But it is insisted, -that there is no privity because of the opinion of the court, in a case referred to in 1 Starhie, 192, in a note. It is there said “ that there is no privity between the executor or administrator, and the heir or devisee of the deceased; and a judgment against the former is not evidence in an action against the latter to charge the real estate.” Mason’s Devisees v. Peters’s Administrators, 1 Munf. 437. This is true, but it does not apply to this case. There is no privity between the heir or devisee of the realty and the executor, because the executor has nothing to do with the realty. The note at the conclusion of the case, referred to shows, that the reporter believed there was a privity between the executor and the devisee of the personalty. See note to Masons’s Devisees v. Peters’s Administrators, 1 Munf. 437.
    The result is that, were there none other parties besides those who might claim under the will, these depositions should be read in evidence. But John Harrington, who is not mentioned in the will, and cannot claim under it, is a party to this suit, and was not a party to the action at law. In what manner, it is asked, will we get clear of the embarrassment, produced by the objection on account of his being a party to this suit? On this subject there is no difficulty, as we believe.
    John Harrington at the time of the pendency of the action at law, was, and is now a privy in estate with Jephthah Harrington. He claimed the estate, or a part of the estate, for which the action was brought at law, by the same deed with Jephthah Harrington and Gabriel Harrington, and could have been made a party at his own instance. The case referred to in 4 Comyn’s Digest, 202, lays down the rule, that where a party claims an estate by the same deed with another, for, or against whom a verdict has been rendered, is so far bound by the verdict, that the verdict may be read, for or against him, notwithstanding he does not claim under him, for or against whom the verdict has been rendered. The case was an action against a remainder man, and verdict for him. The subsequent remainder man claimed the benefit of the verdict, and offered it in evidence, and this he was permitted to do, because he claimed under the same deed, that is, he claimed by the same title. He had an interest in the former litigation, so in the present instance.
    John Harrington could have been made a defendant, or could have had an opportunity of litigating the matter in dispute, in the action at law. He claimed, or was entitled under the same deed, under which Jephthah Harrington claimed, to a part of the ne-groes which were in the possession of Jephthah, and for which the action was brought against him. His portion Jephthah had no title to, ánd could not hold against him, because they both claimed under the same title. By bringing an action against Jephthah, for the portion of the negroes conveyed to him by the deed of gift, a recovery could be had, or an interpleader would have been the result. We must not suppose, that the defendant in such an action would have been so inattentive to his own interest, as to permit two actions to go on against him, at the same time, for the same property, by two persons claiming adversely to each other. When a recovery was inevitable in one, and probable in the other. We are, therefore, authorised in saying, that John Harrington could have been a party to the action at law. He would have been a party, for an interpleader at law, is not an original proceeding, but a part of an action already commenced, or of one commenced, and another in contemplation or commenced. See Jacob’s Law Dictionary, tit. Interpleader.
    We have, we believe, proved, that the parties to the present suit, were either parties or privies to, or had an interest in the suit at law, or could have been made parties, and consequently, that the depositions were properly admitted, unless it has been shown, that the other position embraced in this inquiry may induce a different conclusion.
    2. Was it necessary, that a complete transcript should have been presented, embracing the pleadings and proof taken in the case? It is submitted, that it was not. A transcript of every thing which forms what is technically called the record, was exhibited with the bill properly certified. The depositions taken in the cause formed no part of the record — were merely on file. What, we ask, is the object of giving the record in evidence, or any part of it? It is to show, that such a cause as that set forth in the deposition legally existed; for, otherwise, it would not appear that the deposition was more than the voluntary affidavit of a stranger. See 1 Starkie on Ev. 4th Ed. 266. Again, it is to show that the depositions relate to the same matter. Ibid. 278.
    Apply these rules to this case, what better evidence would the record furnish of the fact, that the suit legally existed, or was for the same matter, wfere the depositions copied and certified as a part of the record? The evidence of those two facts is complete without the depositions. But the last authority referred to settles this question. Exemplification of depositions from the Duchy court were offered in evidence, and they were rejected, because there was not also an exemplification of the answer. Why was it not-also objected, that there was not also a copy of the bill? because the answer without the bill was sufficient to show that a suit legally existed, and that it was about the same matter. Again if the objection here taken be good, then the authority just referred to is. not law, because that authority speaks of the proof of the bill and answer, without saying any thing about the balance of the record, such as replication, orders, decrees, &c., which according to the supposition of the objection should have been proved, being part of the record. But it is unnecessary to pursue this matter any farther. The objection embraced in both branches of the inquiry was, and is not well taken, and the depositions were properly admitted.
    
      2. The appellants, as will be seen by. one of the bills of exception taken in the court below, objected to the reading of the copy of the deed of gift which was exhibited with the bill, and also to the copy of the record in the action at law. The objection was sustained so far as they were offered as evidence, but as exhibits were permitted to be'read, to which the appellants by their counsel excepted, and the clerk has written on the copy of the deed of gift which is transferred into the record, that it was rejected on final hearing, and the counsel for the complainants now insists, that the paper having been rejected in the court below, it cannot be read in this court. To this we answer, that the certificate of the clerk, when he says, “that the paper was rejected on final hearing,” must be intended to mean what the record shows was the fact; that is, that the chancellor permitted it to be read as an exhibit, but not as a distinctive item of the testimony apart from its character as an exhibit. This is shown by the bill of exceptions.
    Again; the counsel insists that the paper should not have been read as evidence below, because it was a copy, and the absence of the original had not been accounted for. To this we answer that the paper was recorded and the copy was taken from the record and properly authenticated. The original could not be procured to be used. The original was on file in the circuit court of Amite. This is shown by the record. Having now disposed of the preliminary questions let us inquire what is the proof in the cause.
    The deposition of Robert Liles.
    This witness proves the execution of the deed of gift; and that the witness had frequently heard Mrs. Bradford speak about the deed of gift after it was executed, and that she said, she had disposed of her property in the manner she intended, and that she considered that the -whole of her estate would not more than compensate the complainants for their services.
    The deposition of Richard Albritton.
    This witness proves that Mrs. Bradford did, on the 25th day of December, 1822, state to witness, that she intended to make a deed of gift of all her property to Jephthah Harrington and his children, stating at the same time, that he, Jephthah Harrington, had done more for her than any other person; that she was not able to compensate him any other way, that he had been like a child to her, and that in the month of July, 1823, or near about that time, the witness was at the house of Mrs. Bradford, who stated to him, that she had made a deed of gift of all her property to Jephthah Harrington, and that it was on record; at the same time she told the witness that she had become displeased with Mr. Harrington, and that she would break the deed if she could.
    The deposition of Thomas James.
    
      i This witness proves that Mrs. Bradford told him that she could not sell any of her property longer than her lifetime, because she had given it all to Jephthah Harrington and his two sons at her death; and that Mrs. Bradford said she deemed it necessary to deliver the negro child, Brazilla Ann, that was born after the deed was made, quod nota.
    
    The deposition of Joel Pridgeon.
    This witness proves, that Mrs. Bradford said she had made a deed of gift of all her property to the complainants, but that she did not wish a public talk made of it, as the people would think she was simple; that afterwards, being offended with Jephthah Harrington, she said she would break it if she could. He never heard her say the deed was forgery, but always said it was just.
    Upon this proof, the chancellor pronounced his decree, and this decree, we believe, was correct, but it is now objected to on the merits.
    That there should not have been a decree like the one which rvas rendered, because,
    1. The deed did, or could pass no title, being without consideration, and unaccompanied with the possession of the property, the subject of the gift.
    To this it is answered,
    1. That possession was given. The bill charges that possession was given, which is not denied by the answer, not directly, and we have the testimony of one witness, who proves a circumstance, which, taken in connection with the other circumstances of the case, shows most conclusively, that possession at the time was given. Thomas James, as before set forth, says, Mrs. Bradford told him that she deemed it necessary to deliver Brazilla Ann, who was bom after the making of the deed. Why was it necessary? Because the others had been delivered, and that one having been delivered, it was right to deliver that one also. This is the only rational explanation which can be given of this testimony.
    But possession was not necessary to be given. Plere we are met with an adjudication in the High Court of Errors and Appeals of this state. The case of Marshall v. Falgham, Opinion Book, p. 76-7, is relied upon to show that a deed of gift is not good of slaves, where possession does not accompany the deed. It is true that such has been the decision of this court, although the counsel engaged on the part of the appellees do not believe that this question is properly involved in this cause. Yet as they may be mistaken, they respectfully ask to be permitted to contest the correctness of the opinion referred to. By this opinion, we understand the broad principle to be laid down, “that-a gift of a chattel, whether by parol, in writing, or by deed, when possession does not accompany the gift, is not good.” Were the proposition limited to a gift, by parol or in writing, our assent would be yielded to it. But in the broad terms in which it is laid down, it is not the law as we believe. 2 Black. Comm. 442, is referred to, in support of 'the proposition. It is true, that the authority referred to, that is, the text seems to support’ the proposition, but upon a closer examination it will be seen that the author is speaking of parol gifts and contracts. A gift, he defines to be a gratuitous transfer of personal property, a transfer without consideration; and in this kind of transfer possession must go with the gift, or the gift is void for the want of consideration, it then being a contract, which cannot he enforced hut upon a consideration. It is evident that here is meant parol gift, because, in a note to the text, it is laid down, " that it has been recently decided, that by the law of England, in order to transfer property by gift, there must be a deed or instrument of' gift, or there must be an actual delivery of the things to the donee.” 2 Barnwell & Alderson, 551, is cited; 1 Chitty’s Blackstone, 356.
    The gift in this case was by deed under seal. The contract, if it is insisted that it should so be called, was executed, and by a deed which imported a consideration, and, according to the authority, was a good gift without possession. Again, suppose such a deed of gift executed without fraud, and possession remain with the donor, and the donee afterwards claim the possession, and it is refused, and an action commenced, and on the trial, the deed offered as evidence of title, would not a recovery at law be inevitable, on the ground that at law the consideration could not be inquired into, the seal being evidence of a consideration.
    . But the opinion under review places the adjudication upon the ground of a want of a good or valuable consideration. Here again, there is, as we believe, a misapprehension in the application of the rule laid down by Blackstone. A contract is defined to be “ an agreement upon sufficient consideration, to do, or not to do a particular thing,” and contracts are executed or executory. See 1 Chitty’s Blackstone, 356-7.
    As insisted in reference to gifts, the text is speaking of parol or simple contracts. Where the contract is executed by a deed, it is immaterial whether there be any consideration at all. The consideration, in such a case, is the seal, and between the parties will be enforced, although creditors may, under some circumstances, treat such deed as fraudulent and void. See note to p. 360, and the authorities there referred to.
    But it is unnecessary to pursue this part of the subject any further. The law of contracts does not apply, but that of gifts, by virtue of which we have shown, that a deed of gift, without consideration, is good; where possession does not pass with the deed. When on- this part of the subject, however, we would observe that the law, upon the subject of gifts, does not stand as it did by the English law. It was found by experience, that creditors and purchasers were liable to be cheated, hindered, delayed and defrauded by voluntary gifts by deed, where the possession remained with the donor, as might legally be done; therefore it was that the statute, commonly called the statute of frauds, was enacted. Revised Code, 193, sec. 3.
    This statute declares all gifts, &c., made to hinder, delay and defraud creditors and purchasers, to be void only as against those who are, or intended to be hindered, delayed and defrauded; “ and moreover, if any conveyance be of goods and chattels, and be not on consideration deemed valuable in law, it shall he taken to be fraudulent within this act, unless the same shall be by will, duly proved and recorded, or by deed in writing, acknowledged or proved; and such deed, if the same be for real estate, shall be acknowledged or proved, and recorded in the county where the land conveyed is situated: and if for personal property, then in the county where the donee shall reside, or the property shall be, and the proof or acknowledgment, in either case, shall be taken or made, and certified in the same manner as conveyances of lands and tenements are by law directed to be acknowledged or proved, and recorded within three months after the execution thereof, unless in the case of personal property, possession shall really and bona fide remain with the donee.”
    If by the authorities which have been referred to it is intended to bring the present case within the range of this statute, or if the case of Marshall v. Falghien was intended to be decided upon this statute, then in either case we say it has no application.
    1. Because in our case the gift was by a deed properly proved and recorded, and it was not recorded.
    3. The gift being by deed it is good between the parties, the provision of the statute being that the gift shall be void only as to creditors and subsequent purchasers, &c.
    3. Where the gift is by deed, and the possession remains with the donor and the paper is unrecorded, the gift is still good between the parties for the reason last stated.
    
      In .this case the deed was recorded under the law. Revised Code, 453, sec: 5.
    This section enacts in substance that all deeds, including deed's for land as well as deeds for personal property, if recorded within three months, shall take effect from delivery, and if not so recorded then to operate only from the time when recorded.
    But on this part of the’ case we insist, that the deed of gift under consideration is, and was, a deed limiting an estate in the donor for life, with a remainder after the expiration of the particular estate to others. That is, Mrs. Bradford, by the deed of gift, reserved to herself a life estate in the slaves, and limited a remainder over to the complainants, and ,as a consequence from this position, the possession of Mrs. Bradford, who held under the deed of gift, was also the possession of those in remainder. % Yerger, 582; 2 Henry Blackstone, 534.
    But here we are met with the objection, that by the rules of the common law, an estate by deed, such as was limited by our deed, cannot be created because of the rule, that in creating a remainder, the estate must be passed out of the donor, and vested, in the first taker, and that the case referred to in Yerger’s Reports is a violation of this rule, as appears from the opinion itself. It is true that in the latter part of the opinion some expressions are used, which would seem to lead to the conclusion that the opinion was in violation of the principles of the common law, and founded-alone upon the Tennessee and North Carolina adjudications; but upon an examination of the previous part of the opinion it will be seen, that it is placed upon common law principles, for the judge says, that the case is an application of an old principle to a new class of cases, and the case in Yerger is supported by the case referred to in IT. Blackstone’s Reports, and by the other cases referred to in the note to the case in Yerger. ■
    The principles which are referred to as having applied to a new case are, that the gift being by deed a consideration is computed, and that it is a covenant made upon consideration by the donee to stand seised of the ■ property for her own use for life, remainder to the donees.
    But this bill is filed because the deed of gift did not operate in the'- mariner intended, trie court of law having decided, that the deed was a testamentary paper, and it is asked to reform the same so as to correspond with the intention of the donor. And it is objected, first, that the testimony does not make out the mistake alleged. On this subject we insist that the proof is ample. ' '
    2. It is also insisted that if the testimony is sufficient then that the court have no authority to pronounce the decree which was pronounced below.
    On this subject the authority of the court to pronounce is amply sustained by the authorities. Ball v. Stone, 1 Cond. Eng. Cha. Rep. 210; 5 Randolph, 211; 2'Murif. 191; 8 Wheaton, 211.
    But if the decree below should be decided to be wrong, the decree can only 'be reversed and the cause remanded; because there are other grounds upon which the court might place a decree, and which cannot be finally passed upon by this court. ,
   Mr. Chief Justice Shaukey

delivered the opinion of the court.

The foundation of this proceeding was upon a suit atlaw, instituted by Hezekiah Harrington, as executor of the last will and testament of Sarah B. Bradford, against Jephthah Harrington, for the recovery of certain negroes, as' a part of the estate. As a bar to the action, the defendant set up a deed of gift for the negroes in question, made by Sarah B. Bradford in her lifetime. By the courts of law, the instrument under which he claimed was decided to be a testamentary writing, and not a deed of gift, and the plaintiff interposed a subsequent will, by which the previous one was revoked, and succeeded in recovering the negroes. An execution was sued out to enforce the judgment, and for the coming bond given and forfeited, and another execution issued, and the defendant then filed this bill to enjoin the proceedings at law, and for reforming the testamentary writing, alleging that it was intended as a deed of gift, but was made a will by the error, mistake, and unskilfulness of the draftsman.' By this instrument, property was given to Jephthah Harrington, Gabriel Harrington, and John Harrington, and the bill is preferred in the name of Jephthah Harrington in his own right, and as administrator of Gabriel Harrington, who has since died, and John Harrington, against Hezekiah Harrington, Francis Cates, William Y. Cates, Mary Jackson Harrington, and William Harrington, who are legatees under the last will. The answers deny the execution of the first instrument as a deed of gift, and require full proof. To show that Mrs. Bradford intended this instrument as a deed of gift, and the mistake of the draftsman, the complainants, at the hearing, introduced and relied on depositions which were taken in the suit at law between Hezekiah Harrington, executor, and Jephthah Harrington, to the admission of which, the respondents objected, but they were received by the chancellor, and a decree for reforming the instrument, and that the respondent be perpetually enjoined, &c., was rendered, and this appeal taken.

These depositions being the only evidence in support of the allegations of the bill, naturally present to the court the first questions for adjudication. The counsel for the appellants have raised two objectionsto them. First, thatthey are inadmissible as evidence between the parties to the bill; and secondly, that even if they were properly received, yet it is insisted, that they are not sufficient to establish the alleged mistake, and to justify a reform of the instrument.

The rule for allowing depositions taken in one cause to be read in another, seems to derive its support from necessity rather than principle, and is justly subject to several restrictions. The following may be considered as the usual tests by which the admissibility of such testimony is to be determined. First, the parties must be the same, or in privity. Secondly. The question in controversy must be the same. Thirdly. That had the testimony been different, it would have been prejudicial to the party introducing it. Fourthly, that the verdict and judgment rendered in one case would be evidence in the other; and Fifthly. The legal existence of the first suit. 1 Starkie on Ev. 253, 54; 264, 5, 6, 7, 8; 4 Wash. Cond. Cha. Rep. 186; 1 Munf. Rep. 389. If all these preliminary questions be essential and indispensable, and I take them to be so, the depositions were improperly admitted. In the first place, the parties are not the same. The suit at law was in favor of Hezekiah Harrington as executor, against Jephthah Plarrington individually, and Jephthah Harrington in his own right, and as administrator, and John Harrington, have become the complainants in this suit, against Hezelriah Harrington and all the other legatees by the will. It does not become necessary to inquire whether there is a privity between Hezekiah Plarrington as executor, and the other legatees, as other and distinct parties are made complainants. John Harrington was not so interested in the first suit as to make the depositions admissible, because his rights were not in litigation. It is true he claims under the same instrument of writing, but he claims different property, and the adjudication on that instrument did not conclude him. If the testimony had tended to defeat the deed of gift, I do not think it could have been offered in evidence, in a suit brought against him for his portion' of the property; and if not, it cannot be good for him.

But it is insisted, that although the parties are not identically the same, yet there is a privity, and on this ground, the depositions were properly received. In support of this position, we are referred to the definition of privies given by Jacobs in his Law Dictionary, and they are said to be “ those who are partakers, or who have an interest in any action or thing, or any relation to another.” Fornlius gives user the same definition, but it is so general, that we get no satisfactory idea of privity. A better understanding of the term is gathered from the examples given by the last mentioned author of the different kinds of privies, and I shall endeavor to apply these examples for the purpose of ascertaining whether the privity exists in this case. The counsel for the appellees have divided privies into four kinds, to wit, in blood, in estate, in law, and in deed, and insist that John Harrington is privy in estate. Now let us take the examples given, and see whether they sustain this position of counsel. The first instance given by the author of privies in estate, is as between donor and donee, lessor and lessee; another instance is, “ as he in reversion ■or remainder, when land is given to one for life, and to another in fee, for that their estates are created both at the same time.” A third is between joint tenants, baron and feme, lessor and lessee, &c. From these examples, I am led to conclude that this privity cannot exist, unless one hold under another, and claim title through him, or unless both have an estate in the same identical thing by title accruing at the same time, when the possession of one is not incompatible with the title of the other, or unless the title and possession be joint. There was privity between John Harrington and Mrs. Bradford, if the deed was valid, and also between her and Jephthah Harrington, but I see nothing to raise a privity between Jephthah Harrington and John Harrington. They claimed different property, and the near approach to a privity between them is, that they both claimed by virtue of the same instrument, but each one had a right to have a separate adjudication on it as to the right he claimed under it. I consider the two cases cited above, from 1 Munf. Rep. and 4 Wash. Rep. as strikingly analogous to the present case, and decision of the question. The case last cited was one in which five joint heirs instituted a suit against the defendant, and took depositions. There were many other heirs claiming the same property, under the same ancestor, who subsequently all joined in another suit. The depositions taken in the first suit were ruled out on the ground that had the proof been different it would not have been admissible as against the heirs, Avho were not joined in the first suit, although they claimed the same property under the same ancestor.

The depositions are also objectionable for another reason. They were not offered in connection with the record. There is such a record as that mentioned in the bill, made an exhibit, but is not connected in any manner with the depositions, and we can only know by inference, that it is the same cause in which the depositions were taken.

But even if we should be mistaken in this view of the law, as applicable to the case, we still feel satisfied, that the depositions • were insufficient for the purpose they were designed to accomplish.

There is no doubt but courts of equity will interpose to correct palpable mistakes, for the purpose of carrying into effect the intention of the parties where that intention is clearly shown, but the proof should be clear beyond a doubt, because, that it is better that a doubtful written instrument should stand, than that a doubtful provision should be substituted by parol testimony. Taking the best possible view of the testimony for the complainants, it produces nothing better than mere doubts as to Mrs. Bradford’s intention.

■ The testimony of Mrs. Willis is nothing but hearsay; and that of Nancy East, so far as it has any bearing on the question, would support the- instrument as a will. The witness in substance states,' that she heard" Mrs. Bradford say, she intended the property for Jephthah Harrington and his two sons. In one of the answers, she states, that at several different times she heard Mrs. Bradford say she intended to leave her estate to the individuals above named, and that she wished them to be heirs to her property; This testimony lead's directly to the conclusion, that Mrs. Bradford intended to make this disposition of it by will.

Robert Liles states in substance, that he was present and signed the deed of gift as a witness. That the instrument presented to him at the time of deposing, was the same deed, that it was executed fairly and voluntarily, and that Mrs. Bradford declared at the time, that Jephthah, Gabriel, and John Harrington were her heirs, that they had rendered her services, and the estate would not more than compensate them. He afterwards frequently heard her speak of the deed, and say she had disposed of her property according to her wish. On cross-examination, the witness says he frequently heard Mrs. Bradford speak of the disposition of her property, before he knew any thing of the deed, and she always said she would give her property to those persons. He also states, that the deed was fully and distinctly read over to her, when if was signed. That it was not secretly done. She frequently spoke of it to the neighbors. That she called it a deed, and appeared fully to understand it.- She considered them more entitled to her property than her other relations, and enjoined on Jephthah Harrington that he should give certain sums of money to certain individuals at her death, if she did not make the gifts during her life.

This is, perhaps, the most important testimony offered, being that of a subscribing witness to the deed; and yét it shows nothing like mistake; on the contrary, it is also in support of the instrument as a will. There' is nothing to induce a belief that Mrs: Bradford thought of any thing else than making a disposition of Her property to take effect after her death. The very words used at the time of signing the instrument indicate that she in all probability viewed it in the light of a will. At that time she declared that they were to be her “sole heirs,” a declaration that well comports with what may be considered to be the notions of one unacquainted with the technical meaning of the term, after having made a will; and the use of these words excludes the idea that she believed she was making a gift of her property otherwise than by will. The instrument seems to have been made in anticipation of death, else why did she request Jephthah Harrington to make the gifts of money after her death. So far from any tiring like mistake being shown, it appears that this instrument was read over to her at the time it was executed, and that she perfectly understood it. The necessary conclusion is, that it was such an instrument as she designed to make. The witness says she called it a deed, and appeared perfectly to understand it. If she perfectly understood it, the name by which she might choose to call it cannot be evidence of mistake, or if it be it is but of a mistake in name, which cannot control the provisions of the writing.

It is unnecessary to recapitulate more of the testimony: no additional fact is disclosed. The witnesses heard her speak of the deed and called it so by name. The testimony falls far short of establishing mistake. There, is one idea kept up and sustained throughout the whole of it, to wit: that she did not consider 'the instrument as conveying any right until after her death, and this is the distinguishing feature between a deed and a will. And when alluding to the capacity in which they were to take, we find that she invariably used the term “heirs,” a term not uncommonly applied to those who take by will. That she was in the habit of calling it a deed,, and declared that she would break it if she could, were but circumstances entirely immaterial when contrasted with her perfect understanding of the provisions of the instrument. The character of an instrument is to be determined by the provisions it contains, and not by-the name which may be given it by a person unskilled in technical language; and her impression that she could not revoke the instrument is not to be considered decisive of her power to do so. But even if it be admitted that she probably intended to make a deed of gift, yet we cannot, on the mere ground of probability, reform -written instruments for mistakes, and I therefore think that if the testimony even were -admissible, it is nevertheless insufficient to accomplish the complainant’s purpose.

There is one other point presented which must be disposed of. For the complainant, Jephthah Harrington, it is urged that at all events the cause must be remanded to the chancery court for further proceedings, because he is a legatee under the will, and is entitled to be protected to the extent of his interest. It is true that he is a legatee under the will, but as the case stands it seems to be impossible to afford any relief. This feature in the prayer is evidently secondary, having been adopted only as'a resort in case of failure in the primary object, and hence the showing for this purpose is deficient. He is but a reversionary legatee, having only an interest in the residue of the estate after the payment of debts and specific legacies. His interest is therefore conditional, and he is not entitled to receive it until the administration is completed, or at least until the debts are ascertained and provided for; because until then it cannot be known what he is entitled to. The proper relief could not be granted unless the court of chancery would undertake to administer the estate with a view to ascertain his rights.

It is alleged in the bill that the estate is not in debt, but denied by the .answer, and there is no proof on the subjéct; and a court of chancery will not decree an account to be taken unless there be a sufficient showing for that purpose. The only showing rve have before us is, that the complainant is a residuary legatee, but whether there is or will be any thing for him to take in that capacity does not appear. Besides, the orphans’ court of the proper county has ample power on this subject, and we perceive nothing in this case which makes it necessary to interfere with-its jurisdiction.

. The decree of the chancellor must be reversed, and the injunction dissolved, and the bill dismissed at complainants’ costs.  