
    EDWARD F. DROOP vs. HENRIETTA C. METZEROTT et al.
    Where executors have settled their estate, but retain control thereof as trustees under the will, in a suit in which judgment must be rendered for or against them as such trustees, and not as executors, either party may testify; such a suit is not within the provisions of Section 858 R. S. Ú. S., and Section 876 R. S. D. 0.
    Equity.
    No. 9,529.
    Decided December 10, 1888.
    The Chief Justice and Justices James and Merrick sitting.
    Appeal from a decree of the Special Term on a bill for an account.
    The Facts are stated in the opinion.
    Mr. A. C. Bradley, for coriiplainant:
    The complainant was examined as a witness in his behalf, and objection was made to his competency under Sec. 858, R. S. U. S., and the case of Page vs. Burnstine, 102 U. S., 644.
    The exclusion of the act referred to only applies “in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them.” With that exception only, and strictly, Sec. 876, R. S. D. C., renders the parties to suits, and all persons interested therein, competent and compellable witnesses, who are not within the exceptions named in that section.
    Although the defendants, Cross and Mrs. Metzerott, are styled in the bill executors and trustees, yet they have no interest in the suit as executors. No judgment can be rendered in this cause for or against them as executors, and. they are interested under the will of W. G. Metzerott herein only as trustees. By the evidence in the cause it appears that the executors settled their first and final account in the Orphans’ Court, November 10, 1885, and distributed to themselves as trustees, so that, after that event, they held the entire estate as trustees. As executors they had and have nothing to do with real estate. Seegar’s Exrs., vs. State, 6 H. & J., 162; State vs. Chester, 51 Md., 377; Kirby vs. State, 51 Md., 392.
    Messrs. Enoch Totten and A. J. Fergusson for defendants:
    The attitude and character of the parties before the court places them within the operation of a well-known rule of evidence. Mrs. Metzerott is the executor of the last will and testament of her deceased husband. The complainant Droop is pressing for what is equivalent to a judgment against the estate. Manifestly, Congress felt that the gen-_ eral rule, permitting parties to testify on their own motion, was disadvantageous to the representatives of deceased persons. Page vs. Burnstine, 102 U. S., 664; Mutual Life Ins. Co. vs. Watson, Adm., 30 Fed. Rep., 653.
    The spirit and the reason of the statute is to prevent injustice and to exclude the testimony of either party as to any transaction with or statement by the testator, because the testator’s lips are closed in death. See Page vs. Whidden, 59 N. H., 507-511; 1 Atl. Rep., 1, 5.
    Several of the States have statutes rendering parties to the record incompetent to testify as to any contract or transaction with a deceased person.
    The Supreme Court of Indiana has decided—
    “ Where rights are claimed through a deceased person, parties to the record are not competent witnesses to prove a contract or transaction with the deceased.” 8 N. E. Rep., 559.
    In Michigan the surviving party to a contract is not a competent witness as to the matters between himself and the deceased party upon which such deceased party if still living could have testified himself. 27 N. W. Rep., 514.
    The Minnesota statute renders the surviving party to a contract an incompetent witness as to conversations with or admissions of the deceased party. Harrington vs. Samples, 30 N. W. Rep., 671.
    It is submitted that the complainant, Droop, as the surviving partner of the testator of the defendants, Henrietta C. Metzerott and Samuel Cross, is not a competent witness under our statute to testify as to any transaction with or statement by the deceased.
   Mr. Chief Justice Bingham

delivered the opinion of the Court:

The complainant filed his bill in this cause as surviving partner of the firm W. G. Metzerott & Co., against the widow, heirs at law, and trustees under the will of his deceased co-partner, William G. Metzerott. The purpose of the suit is the sale and distribution of the proceeds of certain assets of the late firm, consisting of promissory notes and stock, and of certain real estate, standing partly in the name of the complainant, partly in the name of his deceased partner, and partly in the name of both.

The bill alleges that the real estate referred to is part of this property, and belongs in equal interest to complainant and the estate of his deceased partner; that Metzerott left a last will and testament, by which the title to such of said real estate as was vested in him alone, or in him and complainant jointly, passed, by a general clause covering all of his real estate, to his trustees, defendants Cross and Henrietta C. Metzerott, subject to an apparent right of dower in his widow, and therefore, to that extent, the partnership matters could not be settled without the intervention of the court.

The controversy on this hearing relates entirely to the real estate, and only to three parcels. In the answers o.f the parties, they say that the complainant is entitled to the relief which he asks with reference to all the property except the three pieces of real estate to which we will refer.

As to two of these, at the death of William G. Metzerott the title was in him, and as to the other the title was also in him, but as to that there is no claim upon the part of the complainant that the fee simple belonged to the partnership, but only that the partnership had constructed a stable on this lot, and that he, as the surviving partner, was entitled to realize his interest in an alleged ownership of the stable which had been constructed and placed upon the lot by the firm.

' The answers of the trustees and of the heirs, probably more for want of knowledge than otherwise, allege that all the real estate in the name of William G. Metzerott, at the date of his decease, belonged to him individually, and that the firm of Metzerott & Co. had no interest in it.

Evidence has been taken as to the ownership of the three pieces of property, and we think it conclusively shows that all of them were, at the date of the death of Metzerott, partnership property except the lot upon which the stable was built, and that the stable was built with partnership funds, for the use and benefit of the firm. We find that in the accounts stated by Metzerott & Co. for some years before the dissolution of the firm by the death of Metzerott, and in their annual accounts-current the three parcels now in dispute were treated as partnership property and as belonging one-half to each of the partners. This is especially true in reference to the stable, and we find nothing in the record or in the testimony which would seem to refute the proof thus suggested by the books of the parties. Droop, the surviving partner, testifies that two of the parcels in dispute were owned . by the firm at Metzerott’s decease, and that the stable on the other was built, paid for, and used by the firm until the death of Metzerott.

It was objected on the hearing that Mr. Droop was not a proper witness ; that he was excluded from testifying, under Section 858 of the Revised Statutes of the United States, and by Section 876 of the Revised Statutes for the District of Columbia. But the provision of the last act is that all persons interested in suits are competent witnesses and may be compelled to testify, with an exception that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall testify.

In this case it is true the bill refers to the defendants, Cross and Metzerott, as executors and trustees; but it is perfectly evident from the facts stated in the bill, and not denied in the answers, as well as from the averments in the answers, that this is a suit between the complainant and the defendants as trustees and not as executors. No judgment could be rendered for or against them as executors.' It is shown that the estate of William G. Metzerott has been settled by the executors. They have filed their final account in the Orphans’ Court, and the sum found in their hands has been distributed to themselves as trustees. Hence they have the control of this estate as trustees, not as executors. We think, therefore, that Droop is'not excluded from testifying by the terms of the statute to-which we have referred, and that he is a competent witness.

The court in Special Term ordered that the stable in question be sold at public sale, the purchaser to remove the same within thirty days from the date of sale, the proceeds to be equally divided between complainant and the widow. The stable was built with the consent of the owner by this partnership, and for the partnership use, the legal and equitable title to the lots being in Metzerott. It is a brick stable and manifestly intended to be a permanent addition to and betterment of the estate. We think the plaintiff is entitled to an ascertainment of the present value of the stable, to the owner in fee simple, and that he should have credit for one-half of that value in the settlement of his account in this case as the surviving partner of the firm.

For the purpose of ascertaining this fact, and possibly for the purpose of determining one or two other matters relating to rents, if since the death of Metzerott not already disposed of in the court below, the case will be remanded, and the decree of the court below modified as to the stable in accordance with this opinion.  