
    Administrator of Matthew Hueston, deceased, v. Ralph Hueston.
    Admissions respecting a claim against an estate, made by the administrators, when not in the act of accepting or rejecting the claim, but when in conversation with others than the claimant, relating to the claim, are not admissible in evidence in a suit brought to trial after the persons making the admissions had ceased to be administrators; one having been divested of his official character before suit was brought, and the other after its commencement.
    The fact that one of the administrators was one of the heirs of the estate does not alter the character of the testimony so as to make it proper evidence.
    Error to the district court of Butler couuty.
    The original action was brought, in assumpsit, against Harrison C. Bird and Catharine Hueston, administrators of Matthew Hueston, deceased. During the cause, and before trial, Catharine Hueston ceased to be administratrix.
    Bobert Hueston, referred to in the testimony, had ceased to be administrator before suit brought.
    *On the trial in the district court, exception was taken to the ruling of the court, in admitting, in evidence, the admissions of two persons, who were, at the time of the admissions, administrators of the .estate, but who had ceased to be such at the time of the trial. The facts necessary to be stated appear in the following bill of exceptions :
    “ Be it remembered, that on the trial of this cause at May term of said court, A. D. 1853, the said plaintiff, to maintain .the issue on his part, gave in evidence, to the jury aforesaid, that he performed work and labor, from November, a. d. 1841, till January, a. d. 1846, •for said Matthew Hueston, who was then in full life, at A. Hucston’s mill, and upon the farm of the said Matthew Hueston, in said county; and that the said plaintiff, when he came upon said premises, at the time aforesaid, brought with him grain, horses, a wagon, and other articles, which were used upon said premises, indiscriminately with the property of the said Matthew, and also evidence of the value of said articles, and the work and labor, and thereupon rested his case. The defendant then offered in evidence to the jury a paper writing, in the words and figures following, to wit: ‘Received, Rossville, October 19, 1846, of Matthew Hueston, the amount in full •of all claims and demands which I have against him, up to this •date, and he is entitled to all property, of every kind, which I have heretofore owned, or is now held by me, at Hueston’s mills, in con•sideration of his giving up to me all notes and accounts which he holds against me at this time. Said M. Hueston is also entitled to a note, which I have this day transferred to him, on R. Harper, for .about five hundred dollars, and interest thereon; the same to bo held by him without recourse on me. Ralph Hueston.’ The execution of which was admitted by the said plaintiff; and thereupon the said defendant rested his case. The plaintiff then offered evidence of the admissions to the witnesses; and, in the absence of Ralph, of Robert T. Hueston, administrator of the estate of said Matthew Hueston, and one of the heirs at law of said Matthew tending to show an acknowledgment of indebtedness *on the part of the said estate, to the said Ralph, and also evidence of the admissions of Catharine Hueston, widow of said Matthew, while she was administratrix of said estate, made in conversation with the witnesses, in the absence of said Ralph, that the estate was indebted to said Ralph; to all of which the defendant objected; but the court overruled the said objection, and allowed said admissions to go to the jury; and then and there held that evidence might be given by. the plaintiff to show that the item of work and labor, hereinbefore mentioned, was not included in the settlement made in said paper writing, and that said paper writing might be to that extent explained, waived, and contracted by parol evidence; which evidence was accordingly given, and allowed by said court to go to the jury. "Whereupon,” etc.
    The verdict and judgment being for the plaintiff in the district court, the defendant sued out this writ of error.
    
      
      Scott & McFarland, for plaintiff in error.
    
      Vance & Millikin, for defendant.
   Caldwell, J.

The question that arises on this record is, whether the declarations of an administrator, who is not a party to the suit, not made while engaged in the duties of administrator, but made to-a third person, can be received in evidence? For, although one of the persons whose admissions are given in evidence, was a party defendant to the suit at its commencement, yet it appears by the-record that, previous to the trial in the district court, she had been removed, and was no longer a party to the suit.

The authorities on the subject of the admissions of executors and-administrators, as evidence to charge the estate, appear to be somewhat conflicting.

In South Carolina, in the case of Ciples v. Alexander, 2 Const. R. 768, the court hold, that the admissions of an executor or administrator are not competent to charge the estate with a debt; and give as reason that there is no privity between the administrator or executor, and the creditor of an estate; the administrator or executor is not presumed *in law to know whether a demand is just or unjust. In the case of Perch v. Bottsford, 7 Con. 172, it is hold that an acknowledgment, by an executor, that a claim against the estate,' which is barred by the statute of limitations, is duo, will not take the case out of the statute. In speaking of the duties of the executor in that case, the court say: “His duty, as executor, is to settle the estate according to law, not to subject it to debts by his declaration or admission.”

On the other hand, in the case of Emerson v. Thompson, 16 Mass. 429, it is, held that a promise, by an executor, took the case out of the statute of limitations.

In Beardslee v. Johnson, 15 Johns. 4, where the executor making-the admission was also a devisee, the court held that the admission was evidence, on the principle that the promise of one joint debtor is good as against his co-debtors, and say that they see no reason why the principle should not apply as well to the case of executors, heirs, and devisees as to any other case.

The case of Atkins v. Sanger, 1 Pick. 192, was a trial respecting the validity of a will; and the court hold that they will admit evidence of the declarations of either of the executors, as to facts that took place at the making of the will. See Cowen & Hill’s notes to. Phillips’ Evidence, vol. 2, p. 167.

The general question respecting the admissibility of the admissions of executors and administrators, on account of the conflict of authority not being settled by precedent, we are left to determine-what the decision should be from the general principles of law.

The general principle, on which admissions are received, is, that, the party making the admissions does so against his own interest. Now, the administrator, as such, has no interest in the estate that he can prejudice by admissions such as are hero proved; the estate does not belong to him; he is not personally accountable for its-debts; it is, so far as interest is concerned, a matter of indifference to him whether *the assets go to one creditor or another, or whether to the creditors or to the heirs. Whether a large judgment is recovered against the estate, or a small one; or whether any judgment at all, is a matter in which ho has no personal interest whatever. In making a mere loose admission, such as this was, to a third person, the responsibility of official action docs not attach to the act; for, although he would be liable to those interested in-the estate, if he improperly admitted and paid a claim, yet it is-hardly probable that he could be rendered liable for a mere unofficial admission; and yet, if such admissions are to be received in evidence, they might be equally fatal to the interests of those having-rights in the estate, as if he had paid the claim. The administrator is generally called on to settle claims of which he had no knowledge in their inception; his information as to their validity will necessarily be very imperfect; his loose statements, therefore, in reference to them, would constitute a very unsafe kind of evidence. An administrator, too, may have his prejudices in favor of one creditor, or party interested, in an estate, over another; and experience-teaches us that such, prejudices frequently exist. In this way, he could give one party an unfair advantage over another without any danger to himself.

In this instance, one of the persons who made the admissions was. an heir of the estate. This did not create that kind of privity of interest with the other heirs and creditors that would enable him to make admissions which would bind them; in order to do this,, the interest must not be merely a common, but a joint interest. A community of interest is not sufficient.

But the other administrator, whose admissions are proved, is not shown from the record to have any interest whatever in the estate. It is not necessary for ns to determine whether the doctrine that •once obtained, that the admissions of a nominal party to the record, -could be”received in evidence against the person beneficially interested, is correct or not. No such questiomarises in this case, neither of the persons *whose admissions were proved being parties .at the time the evidence was offered, and one of them never having been a party to the suit.

The court is of the opinion that the evidence was improperly .admitted.

The judgment of the district court will therefore be reversed.  