The action in this case was brought to foreclose a mortgage executed by the defendant to Samuel Butler, the plaintiff's intestate, in his lifetime. A question of fact arose upon the trial before a referee upon which oral testimony was competent to be heard; and upon that question the plaintiff called one of the children of Samuel Butler, as a witness on her behalf, who was received and permitted to testify, against an objection by the defendant, that the witness was incompetent for the reason that he was one of the persons for whose immediate benefit the action was prosecuted. (Code, § 399.) It was not shown whether the estate of Samuel Butler was solvent or insolvent. There was no evidence that the witness was at all concerned in bringing the action; and the only fact relied upon to bring him within the exception to the general rule allowing interested witnesses to testify, was his relationship to the deceased. That the action was in some sense brought for the benefit of the witness, is presumable from the fact of his being a distributee, in the absence of evidence that the estate was insolvent. If solvency was established or is to be presumed, a recovery in the action would increase the fund in which the witness was entitled to participate. (See Flinn v. Chase, 4 Denio, 85, and casescited.) But to exclude the witness the action must be prosecuted for his immediate benefit. Unless significance is given to this word, the exception will restore the objection of interest in almost every case, which could not have been within the intention of the legislature. The exception in Lord Denman's act, is that the provision shall not render *Page 294 competent "any person in whose immediate and individual behalf any action may be brought or defended either wholly or in part." (3 Manning, Gr. Scott, 307.) The language is stronger in respect to the connection of the witness with the prosecution, than that used in our act; since an action may be brought for the benefit of a person where it was not instituted in his behalf; and, therefore, the cases upon the English Statute, one of which would otherwise be directly in point, cannot be fully relied on. (Hill v. Kitching, 3 Mann., Gr. S., 299; Hart v.Stephens, 6 Ad. Ellis, N.S., 937.) We must recur to the word immediate and endeavor to ascertain its meaning in the connection in which it is used; and I think it may safely be affirmed that an action cannot be said to be prosecuted for the immediate benefit of a person, unless such person would have a right to the amount recovered or some portion of it, as soon as it should be recovered by the nominal plaintiff. It should at least be a case where he could maintain an action against such nominal plaintiff for money had and received by him to the witness' use. I do not say that every such case would be within the exception; but I am confident that unless the witness' connection with the cause of action will entitle him to bring such a suit as soon as the nominal plaintiff has collected the money, he is not disqualified by the provision under consideration.
Now, an administrator is entitled to collect the choses in action belonging to the estate of the deceased, and to expend the money in the course of administration. He is not accountable to the distributees until the debts are paid; and although he is liable after a certain lapse of time, to an action, in the nature of a bill to account, or to a proceeding of a similar kind before the surrogate, he will not be subject to a personal decree against himself, except upon the proof of facts, amounting to adevastavit. It cannot be pretended, that as soon as this mortgage debt should be realized by the administratrix, the witness could, upon *Page 295 proof of that fact and of his relationship to the deceased, maintain an action for the money. He would not be entitled to anything, except upon the footing of an account, and only to the amount not required for the other objects entitled to be preferred in the administration. I am, therefore, of opinion that the witness was competent, and that the referee decided correctly. The following cases in the superior court of the city of New-York, are in accordance with the conclusion at which I have arrived. (Washington Bank v. Palmer, 2 Sandf. S.C.R., 686; New-York and Erie R.R. v. Cook, id., 732; Bank ofCharleston v. Emerick, id., 718; Megary v. Funtis, 5id., 376. See also Freeman exr., v. Spalding, 2 Ker., 373.)
The judgment should be affirmed.