I concur with Mr. Justice WIEST. A wife, under the so-called "married women's act (3 Comp. Laws 1929, § 13057 et seq.), " may, with the consent of her husband, engage in business on her own account (Tillman v. Shackleton, 15 Mich. 447 [93 Am. Dec. 198]; West v. Laraway, 28 Mich. 464), and she may sue and collect for personal services performed by her; and, in case such services were performed for a person who dies before the settlement of her claim, she may present in her own name a claim against the estate of such deceased person, to get pay for the services performed, independent of any claim her husband *Page 408 may have, under some circumstances, to her services.Slack v. Norton, 111 Mich. 213; Ashley v. Smith's Estate,152 Mich. 197; In re De Spelder's Estate, 181 Mich. 153; In reDay's Estate, 197 Mich. 604; Hartle v. Keefer's Estate,260 Mich. 188. In case services like those involved here were performed by the wife, and the most of the services involved were performed by her, such services were her property and belonged to her, and she could maintain a claim against the estate of the deceased person to recover therefor. In this case she did present a claim for $16,866 for personal services. In the trial of this case it was conceded that if plaintiff's claim was allowed the wife would be estopped from enforcing her claim. "This statute is intended to reach the real party in interest and not a mere nominal party." Penny v. Croul,87 Mich. 15 (13 L.R.A. 83). The proviso inserted in the statute in 1885 was for the express purpose of preventing the practice which had prevailed under the statute before such amendment of assigning the claim against the estate of a deceased person and then having the assignor sworn as a witness to prove it.Stackable v. Stackable's Estate, 65 Mich. 515; Penny v.Croul, supra.
"The legislature intended not only that the party owning the claim should not be permitted to testify to the matters equally within the knowledge of the deceased person but also to prevent any evasion of the statute." Penny v. Croul, supra.
If the wife performed the contract or any part of it with deceased, either the proceeds of such performance accrued to her, in which case her husband, who here presents a claim for such services, is her assignee, and she is incompetent to testify to matters equally within the knowledge of deceased *Page 409 (Stackable v. Stackable's Estate, supra; Berry v. Adams,122 Mich. 17; Finn v. Sowders' Estate, 139 Mich. 623; In re Day'sEstate, supra; Hartle v. Keefer's Estate, supra), or she was his agent in at least the part performance of the contract, in which case she is equally incompetent to testify to matters equally within the knowledge of deceased (In re Reidy's Estate,162 Mich. 154). On the record, there is no question but what as to that part of the claim for services which belonged to the wife, included in the judgment for plaintiff, he stands in the position of an assignee. Stackable v. Stackable's Estate,supra; Berry v. Adams, supra. It is immaterial that claimant's wife is not a party of record. The statute applies to any person whose interests are as a matter of fact antagonistic to the interests of those for whose benefit the statute was passed. Cutter v. Powers, 200 Mich. 375. The services for which plaintiff's wife presented a claim are included in the claim of plaintiff. To all intents and purposes there was a gift from her to him of her part of the claim, and in effect an assignment to him of her rights.
"She was, therefore, prohibited from testifying by the statute as she would have been had she attempted to enforce the alleged contract upon her own behalf." Berry v. Adams, supra.
1. Claimant cannot testify under the settled construction of the statute to matters equally within the knowledge of the deceased.
2. Plaintiff's wife cannot testify to matters equally within the knowledge of the deceased because she stands in the position of an assignor. Judgment reversed, with costs. New trial granted.
FEAD, J., concurred with POTTER, J. *Page 410