The opinion of the Court was drawn up by
Weston C. J.This is an action brought to recover land, conveyed in mortgage to the plaintiff's intestate, to secure the payment of a note due from the defendants. It is not pretended that the note has been wholly paid ; and the lien created by the mortgage is still in force for the security of the balance. Whether the beneficial interest in the debt and the mortgage, by which it was collaterally secured, remains in the estate, or was passed by the intestate in his lifetime to his daughters as donees, as is alleged by the defendants in their brief statement, the legal remedy, either upon the personal or real security, must be prosecuted in the name of the representative of the estate. Whatever he may recover lie would hold in trust, to be legally disposed of as assets, or for the use of the donees, if their right is established. If the defence had been, that the whole debt had been rightfully paid to the donees and this had been proved, a verdict for the defendants might have been sustained; but if they are still liable, and that liability is to be enforced, the remedy is properly prosecuted by the administrator.
The ground upon which the facts in the brief statement were in*228tended to defeat the action, do not appear in that statement, nor in the report of the last trial. When this case was under consideration before, on exceptions from the Common Pleas, the right of the donees was alleged as it now is; and it further appeared, that the defendants offered to prove, that the suit was brought against the will of the donees, and solely for the benefit of the estate.
The note was the principal security. To this the mortgage was collateral and ancillary. If the note had passed to donees, the administrator, the representative of the estate, is merely a nominal party, and has no right to interpose, but for their benefit and at their request. If he thrusts himself in adversely to them and this' fact is made to appear, the Court have power to restrain him from prosecuting his suit, as they would the assignor of a chose in ac-' tion, or his representative, who might bring a suit against the interest or wishes of the assignee. It is in this way only, that the facts relied upon could be brought to bear against the action. It is of no moment to the defendants, whether they are liable for the benefit of the estate or of the donees. It is manifest, that in setting up the facts in the brief statement, they are acting in behalf of the donees. If the interest is' found to' be in them, and they repudiate the suit, the Court would not suffer it to be prosecuted by a mere nominal party. Same v. same, 15 Maine R. 429.
This inquiry as to .the beneficial interest, which is a mere collateral question, so far as the defendants are concerned, must be raised purely for the benefit of the donees. Hence the Court say in this case, before cited, if “ it should be made to appear, that the donees are the real party in interest, the plaintiff will not be permitted to prosecute this suit against their will, and still less for the benefit of the estate.” They are alone interested in the facts, alleged in the brief statement. We are therefore of opinion, that they cannot be verified by their testimony. The donees, or their husbands, were not legally admissible as witnesses. And upon this objection, the verdict is set aside and a new trial granted.