
    Nathaniel B. Beach versus Sarah D. Pennell.
    In an action, -where the question in issue is, whether the property in controversy is a part of an estate, of which one of the parties is an administrator, the parties are admissible as witnesses.
    
      Thus, in an action of replevin for certain articles of merchandise, where the defendant alleged, by way of brief statement, that the property was part of an estate of which she was administratrix, the plaintiff was permitted to testify that the goods were not sold by him to the defendant’s intestate, but consigned to him for sale.
    Exceptions to the ruling of Davis, J.
    This was an action of replevin for a quantity of cheese.
    Plea, general issue, with a brief statement, in which it was, in proper form, alleged, that the defendant was the administratrix of the estate of George W. Pennell; that the property replevied was a part of his estate, and was in his possession at the time of his death; that, on her appointment, as his administratrix, she took possession of the same, &c., and that the plaintiff had no title to the property. And further, that if the property had not been sold by the plaintiff to her intestate, he held the same as consignee— had made advances for freight, &c., — that he had a lien upon the property for said expenses, and, as his administratrix, she rightfully had possession of the same, at the time the plaintiff brought this action, the lien not having been discharged.
    It appeared that the defendant’s intestate kept a grocery store, in Portland, and died suddenly, on the 14th day of October, 1860, leaving the cheese in question in his store, with other goods. The plaintiff was a farmer and manufacturer of cheese, residing in Vermont, and had been accustomed to sell cheese to said George W. Pennell, previous to the year 1860. The defendant was appointed administratrix of said Pennell’s estate, Oct. 17th, 1860, and plaintiff' made a demand upon her, for the cheese in question, on the 22d day of said October, and, the same not having been given up, commenced this action on the same day against her, personally, and not as administratrix.
    The plaintiff, among other things, to maintain his action, relied upon an alleged parol contract made between himself and said George W. Pennell, at a personal interview at the the latter’s store, in Dec., 1859, by which it was agreed that the plaintiff should send and said Pennell should receive the cheese in question, to be made the next season, to sell on commission; and, to prove such alleged contract, the plaintiff’s counsel proposed to call the plaintiff himself as a witness. The defendant seasonably objected to his competency, but the Court overruled the objection and admitted the plaintiff as a witness. The defendant, after the plaintiff had been thus admitted generally as a witness, seasonably objected to his being permitted to testify what took place at the interview aforesaid, between him and said George W. Pennell, respecting said cheese, or as to any matters and things relating thereto, happening before said Pennell’s death; but the Court again overruled the objection and the plaintiff testified to the making of such alleged verbal contract, as aforesaid, between him and said Pennell, and that he sent the cheese in controversy to said Pennell, in his lifetime, under said contract, in September and the first of October, 1860.
    The defendant offered evidence tending to show, that the cheese in question was sold and not consigned by the plaintiff to said George W. Pennell, in his lifetime, and was the property of said Pennell at his decease, and came rightfully into her hands and possession, in her said capacity of administratrix, as part of his estate.
    The verdict was for the plaintiff’, and the jury found specially that the property in the cheese, at the time of the commencement of the action, was in the plaintiff'.
    To the ruling of the Court the defendant excepted.
    
      Fessenden & Butler, in support of the exceptions.
    The statutes impose no hardship upon the living party, because he can so conduct his transactions and make his contracts that they may be susceptible of other proof than his own testimony.
    This case itself is a good illustration of the wisdom of the exception contained in § 83, c. 82 of E. S. Eor a series of years the plaintiff had sold his cheese to the intestate. After the intestate’s death, and insolvency of his estate, the plaintiff seeks, by his own testimony alone, to show a change, the last year, in this whole course of dealing and that the particular cheese in question, were consigned instead of sold.
    This may or may not have been so in this particular case, but the point is, that it would be highly dangerous to found decisions, as a general rule, upon testimony of this kind, and that substantial justice in the long run would be better promoted by its exclusion. The exception in the statute being founded on this principle, is not the defendant a " party defending,” in her capacity as administratrix, fairly within its meaning ? ■
    She is so, wé contend: — 1st. Because it appears, by the pleadings themselves, that the defendant, in her said capacity, is "the party defending.” It is true that she is not made a party as administratrix, by the plaintiff in his writ, but the writ is only a part of the record. The subsequent pleadings, by which the real issue in the case is raised, show that she is defending in her official capacity. And the averments therein are supported by the facts, as the case shows.
    This is an action of replevin. The defendant’s plea and brief statement are in the ‘nature of an avowry at common law; where' both plaintiff and defendant are actors, and either party may allege upon the record and prove material facts. ,
    2d. If not technically a party to the record in her representative capacity, the defendant is " the party defending” in said capacity, within the language, the spirit, intent and object of the statute. She sets up no claim of her own to the property. The controversy is between the estate she represents and the plaintiff, in regard to it. The estate alone suffers or is benefited by the result. The controversy arose out of transactions which took place in the lifetime of her intestate, with which she had nothing to do, and of which she had no knowledge. Under the circumstances, it was her duty, as administratrix, to defend the suit, and she would have been unfaithful to her trust had she neglected to do so.
    The language of the statute is peculiar; " when the party prosecuting or the party defending is,” &c. It 'is evident that the word " party” is- not used in the technical sense of party to the record, for then the words " prosecuting” and " defending,” would be entirely superfluous. It would rather seem to mean the real party or person who is actually prosecuting or defending the suit in distinction from the mere nominal party.
    And, on the other hand, when an executor or administrator is made a mere nominal party at the suit of some third party, neither the language or the spirit of the 83d section would apply so as to exclude the testimony of either party. In such case they would not be " the party prosecuting or the party defending.”
    That the above is the true construction of the 83d section, appears from the fact, that administrators or executors, in the settlement of estates, frequently have occasion to bring actions in the name of third parties, as, for instance, upon choses in action, non-negotiable, belonging to their estates. Are they not parties prosecuting-, in the sense of the statute ? and does it not apply in such case as much as it would if they appeared parties upon the face of the record ?
    There are numerous cases also, in which it is admissible for executors or administrators to declare either in their individual or representative capacities.
    Is the statute to receive such a construction that parties may have the power, by the mere change of the form of declaring, to admit or exclude testimony at their pleasure ?
    In this controversy concerning the property replevied, had the parties been reversed, and the present plaintiff, having seized the cheese and the present defendant thereupon replevied the same, she could have brought the action either in her individual or representative capacity. Would she not have been the party prosecuting in her capacity of administratrix, whether brought in one form or the other? And in-the one case should the evidence be excluded, and in the other admitted, the controversy being all the time the same? And if she in the case supposed would be "the party prosecuting ” in said capacity, is she not now equally the "party defending'1'’ in the same capacity?
    
      J. C. Woodman, contra.
    
   The opinion of the Court was drawn up by

Davis, J.

This is an action of replevin, brought to recover a quantity of cheese from the possession of the defendant, who refused to give it up, on demand being made therefor. Upon the trial, the defendant justified her refusal to give up the property, on the ground that it belonged to her late husband, and that she was administratrix of his estate. Whether she was justified, as administratrix, in withholding the property, depended on the question of title; and this was the issue presented.

The plaintiff offered himself as a witness, and she objected to his admission, on the ground that she was defending the suit as administratrix. He being admitted, she objected to his testifying to' any facts occurring in the lifetime of her husband; and to the admission of the witness, and of such testimony, exceptions were taken by her counsel.

By R, S., c. 8-2, § 78, parties to civil suits are made competent as witnesses, in all cases; as far as there is any objection on the ground of interest. By § 83, an exception is made, "when the party prosecuting, or the party defending, is an executor, or administrator.” So that parties are admissible as witnesses, in all such cases, unless it appears, at the time of the trial, that one of the parties is prosecuting or defending as an administrator or executor.

It is argued by the counsel for the defendant, and correctly, that the description of the parties in the writ is not conclusive. Nor is it material that either party is, in fact, an administrator of some estate, unless the subject matter of the controversy is a part of the same estate. And, until that fact appears, the rule must be applied, which admits the parties, and not the exception, which excludes them.

When, therefore, the very question, in issue is, whether the property in controversy is a part of an estate of which one of the parties is an administrator, the parties are admissible as witnesses. For while that fact is in dispute, it does not yet appear that either party is an administrator respect ing suck property. It is the duty of the Oourt to rule whether either party is such administrator; and when that is the fact on trial, before the jury, the Court cannot find that either party is then within the exception, so as to be excluded.

This principle haá been applied to cases under this statute. Thus, on a trial of the question whether a will is valid, so that it should be approved, the person named as executor, not having yet assumed the trust, is admissible as a witness. McKeen v. Frost, 46 Maine, 239. So in the case of Longley v. Rand, decided in the western district, in 1862, it was held that one sued as an executor de son tort was admissible as a witness, on the ground that, if the statute applied to such executors, the question in issue was, whether the property was taken by defendant as suck an executor; and, until that fact was established, he could not be excluded.

So in the case at bar, the question for the jury was, whether the defendant, in holding the property sued for, acted as administratrix. When the plaintiff was admitted to testify, it had not then appeared that she held the property as administratrix. It subsequently appeared, by the verdict of the jury, that she did not. If the verdict had been otherwise, it could not have affected a previous ruling of the Court.

It is argued that the design of the exception in the statute, was to exclude the testimony of one party to a contract, when the other party, being dead, could not be heard. And it is said that the case before us is within the mischief which the statute was intended to remedy.

If such was the design of the statute, then the Legislature were unfortunate in framing it. For such a purpose, there was no necessity that the executor or administrator should be excluded at all. But the statute excludes him, as well as the other party to the suit. •

And besides, it very rarely happens that a suit at law turns upon the question as to what any contract was. A large proportion of contested cases are for torts, in regard to which only one of the parties may have any personal knowledge. And in suits for the violation or non-performance of contracts, it often happens that one of the parties, only, can testify from any personal knowledge. In suits between indorsees, and makers or indorsers of negotiable paper, frequently only one of the parties, and perhaps neither, knows anything in regard- to the original contract. And yet in all these cases, when prosecuted or defended by an administrator or executor, the living party, who may have some knowledge, must be excluded, because the other party, who may have known nothing of the matter, is dead. So that, if the rule, which admits parties to testify, is a good one, then the exception referred to works injustice as often as otherwise. When both parties are living, they seldom stand upon equal terms, in regard to the advantage of being witnesses. And therefore an absolute rule, that one shall not testify when the other is dead, is quite as likely to work mischief, as to remedy it.

Such bein'g the general result, it is our duty to apply the statute according to its terms, whatever may be its effect upon any particular case. And, as the parties should not be excluded in any case, unless it appears, as a fact not in controversy, that one of them is acting as an administrator or executor, in regard to the property or other matter in dispute, the rulings in the case at bar were correct.

Exceptions overruled.

Appleton, C. J., Cutting, Goodenow- and Walton, JJ., concurred.

Rice, J., non-concurred.  