
    Abijah Cheeseman, Administrator of John Kyle, James Kyle.
    1, In a suit brought by A. against the administrators of B., in which the question in issue is whether B. holds possession of personal property as the bailee or as the vendee of A., the declaration of B. that he was the owner, is not admissible in evidence in favor of the administrator, although said declaration was made while B. was in possession of the property, and was accompanied by the act of offering to sell the same.
    2. Where an administrator has seen and examined a claim against the estate he represents, and is subsequently requested to allow it, which he refuses to do, such claim being present in the pocket of its owner, and the administrator so told, a formal presentation of the claim is not necessary, but may be presumed to be waived.
    Error to tbe district court of Butler county.
    James Kyle, tbe defendant in error, commenced a civil action against the plaintiff in error, Abijah Cheeseman, administrator of John Kyle, deceased, in the court of common pleas of Butler county, assigning, in his petition, among other things, as one cause of action, an indebtedness, on the part of said administrator, to him, for goods sold and delivered to the said John Kyle, in his life time; and, as a further cause of action, that in the life time of John Kyle he loaned to him a certain mare, with the express agreement that she was to be returned on demand ; that she was. in the possession of John Kyle at the time of his death; that he notified the said Administrator, that he was the owner of the mare and demanded her possession, but the administrator refused to deliver her, and afterward sold her and converted the proceeds of sale to the use of the estate. That about the 9th of September, 1858, he presented his said claims, duly authenticated, to the administrator for allowance, but the administrator refused to allow the same. He demanded judgment for the amount of his debt, and the value of the mare.
    The administrator answered, among other things, denying that the mare was loaned to John Kyle or was to be returned; and averring that she was given by James Kyle to John Kyle (who was the son of James) in his life time as an advancement. The administrator also denied that James Kyle presented his claims for allowance, as alleged in his petition.
    There was a reply among other things denying the alleged gift of the mare to John Kyle.
    The cause was tried upon these and other issues to a jury, and a verdict and judgment-rendered for James Kyle.
    A motion was made for a new trial, which was overruled and exception taken.
    A bill of exceptions taken on the trial, shows that the plaintiff below, having offered evidence tending to prove the issues on his part, rested; and that the defendant below, in support of his defense called as a witness one Clark Baker, who testified that in the fall of 1857, and about three months before John Kyle’s death, said John Kyle had the mare in his possession, on his farm, and at that time proposed to witness to sell said mare to him. The defendant then propounded the following question to the witness: “ State what John Kyle said, if any thing, at the time he proposed to sell you said mare, as to the character of his possession of said mare.” The witness answered that “John Kyle said the mare was his and he intended to sell her.” The plaintiff objected to the answer, so far as it was intended to show John Kyle’s title to the mare. The court sustained the objection and ruled out the evidence. To this ruling the defendant excepted. It further appears from the bill of exceptions, that “in reference to the presentation and rejection of the plaintiff’s account, in September, A. D., 1858, as stated in the petition, the testimony tended to show that plaintiff asked defendant to allow the account, and defendant refused so to do, but the account was not in fact presented, though plaintiff had it in his pocket at the time, and told Cheeseman he had it with him; the testimony also showed that defendant had seen and examined the account in March, 1858. The defendant claimed in the argument to the jury that in order to constitute a valid presentment, the account must be actually presented at the time it is asked to be allowed, and asked the court so to charge the jury. The court refused so to charge, but instructed the jury that they might presume a want [waiver] of actual presentation by a refusal of defendant to allow the same;” to which ruling exception was also taken.
    In the district court the judgment of the common pleas was affirmed.
    To reverse this judgment the present petition in error was filed. The errors assigned are—
    1. The district court erred in refusing to reverse the judgment of the common pleas.
    2. The common pleas erred in refusing to allow to go to the jury the statement of Baker showing what John Kyle had said touching the character of his possession of the mare.
    3. The common pleas erred in refusing to instruct the jury that there must be an actual presentation of the account, and in instructing the jury that they might presume a waiver of presentment from a refusal of the administrator to allow the account.
    
      Thomas Millihin, for plaintiff in error:
    1. The court erred in refusing to allow Clark Baker’s answer to the question asked him, to go to the jury. 1 Greenl. Ev., sec. 109; Wetmore v. Mell, 1 Ohio St. Rep. 26; 9 N. H. 271; Walkup v. Pratt, 5 Harr. & Johns. 51-57; 2 Cain’s Rep. 106; Nelson v. Iverson, 19 Ala. 95; 17 Ala. 10, 216; 4 Pick. 378; Halsted’s Law of E. 420, 427; 2 Cow. & Hill’s notes, pt. 1, pp. 601, 602, 603; 3 Carr. & Payne, 395; West v. Price’s heirs, 2 J. J. Marsh. 380.
    2. The court erred in holding that the actual presentation of the account was not necessary, but that a waiver of presentment might be inferred by the jury from a refusal to allow. S. & C.’s Stat., sec. 88, p. 582—3; 13 Ohio Rep. 41. The actual presentment is required by the statute, not for the convenience of the administrator, but for the benefit of the estate.
    
      N. O. McFarland, for defendant in error:
    1. To permit the declarations of John Kyle to go to the jury in this case, is to- allow him to support his own title by his own declarations made after he received the mare, and after he received whatever title or interest he may have had in her. They are nothing more than the declarations of a party in his own favor, made wholly unconnected with and independent of the transaction by which he acquired such title or interest. It is just as if he had said: “My father gave me this mare six months ago, and I want to sell her.”
    The question before the jury was one of title, and not one as to the hind of possession.
    
    Declarations can only be offered under res gestee, when they are connected with the principal fact under investigation, and explanatory of the acts of the party. The “principal fact,” in the case at bar, was not the kind of possession which John Kyle was holding, but it was the terms on which he procured the mare, whether as a loan or gift; and the act which may thus be explained was not the act of trying to sell to Baker, but the act by which he procured her. He could make no evidence of title by offering to sell the mare, nor by declarations explanatory of such offer. The authorities cited by counsel for plaintiff in error show this distinction. See also Waring v. Warren , 1 Johns. Rep. 340; Watson v. Bissell, 27 Miss. 220; Cavin v. Smith, 21 Miss. 444; Burgess v. Quimby, Ib. 508.
    2. I submit the second point without argument.
   Wilder, J.

Two questions in this case are presented by the record for our determination:

1. Was the testimony of Clark Baker that John Kyle, the intestate, said that “ the mare was his, and he intended to sell her,” under the circumstances appearing in the case, admissible ?

2. Did the court of common pleas err in its refusal to instruct the jury that there must be an actual presentation of the account, or in its instruction that the jury might presume a, waiver of actual presentation by a refusal of the administrator to allow the account ?

It is a general rule of evidence that the declarations of a party are admissible in evidence against him, but not in his favor. It is claimed however, by the counsel for the plaintiff in error, that, in this case, it being shown that John Kyle had long been and then was in possession of the mare, and was then offering her for sale, his declaration that he was her owner was admissible in evidence as explanatory of the nature of his possession, and of the act of selling the mare. He cites 1 Greenleaf on Evidence, section 109, Wetmore v. Mell, 1 Ohio St. Rep. 26, and sundry other authorities to support his proposition. That part of section 109, in Greenleaf, is as follows : “ No reason is perceived, why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestee; leaving its effect to be governed by other rules of evidence.” We see no objection to the rule as thus laid down. The declarations mentioned are “ in disparagement of,” “ or otherwise qualifying,” the claimant’s possession. In the case before us, the declaration was of unqualified ownership of the property, and not such as would be embraced within the above rule.

In Watson and others v. Bissell, 27 Missouri R. 220, it was held that “ the declarations of a person in possession of land as a life tenant could not be received in evidence to elevate his life estate into an estate in fee.”

In Wetmore v. Mell, 1 Ohio St. Rep. 26, it appeared that on the trial of the suit of Mell v. Wetmore, brought for a breach of promise of marriage, evidence was received, on the part of the plaintiff, that she had made preparations for marriage, and of. her declarations made during the preparation. It was held admissible, but only for the purpose of showing the plaintiff’s acceptance of the defendant’s promise. The court say: “ The defendant’s promise was shown by other distinct facts and circumstances, and it was proposed to show plaintiff’s acceptance of it, by her preparations for marriage, together with her statements to her sister explanatory thereof, and for this purpose only, was the evidence admitted by the court.”

In the case before us, the question directly in issue was whether the property passed into the possession of John Kyle as a gift or as a loan. The “res gestee” were the loan or gift, and the transfer of possession. The declaration offered in evidence formed no part of those transactions, and must be regarded as a simple declaration in his own favor. Although accompanied by the act of “offering to sell,” it does not come within any of the exceptions relating to a qualification of the possession, or as a part of the “res gesteewe think, therefore, that the evidence was properly excluded.

As to the second question. It is shown in the bill of exceptions that the administrator had seen and examined the account in March, 1858. The evidence tended to show that in the September, following the plaintiff asked the administrator to allow the account, which was refused; that the account was not. in fact presented, though the plaintiff had it in his pocket, and told the administrator he had it with him. If such were the facts, of what importance could it be, that the account should be taken from the pocket and formally presented ? The object of the law in requiring the presentation of claims against an estate, to the administrator, is to apprise him of their existence, amount, and character. Such knowledge of this claim the administrator had already acquired in March; and assuming that the other facts were proved which the evidence tended to prove, we think that a refusal to allow the account under such circumstances, would be a waiver of its formal presentation, and that the jury would be warranted in so finding.

We are of the opinion, therefore, that the court of common pleas did not err in its refusal to charge the jury as requested, or in its charge as given.

The judgment of the district court must be affirmed.

Brinkerhoee, C.J., and Scott, Ranney and White, JJ., concurred.  