The Evidence Act of 1865-6, authorizing parties to be witnesses, in terms, excepts cases where one of the original parties to the cause of action on trial is dead, or where an executor or administrator is a party to a suit on a contract of his intestate or his testator : Section 3798 of the Code. This case is within the very letter of the Act. True, on that trial there has arisen another issue, in which the administrator has no special interest, since, in the condition of this estate, it matters but little to him and to the heirs-at-law, which of the creditors shall be first paid. But it will be a very dangerous practice to open the door to the evidence of the living party on special facts. Where are we to stop ? Perhaps the fact sought to be proved may need to be explained by going into the whole matter. The parties here defending, to-wit: the other creditors, are privies of the testator; they stand in his shoes; his property is in trust for their benefit and prima fade for their equal benefit. Is it fair to them, his successors, to permit one of the parties to the contract to be a witness, when the other party, to whose rights they succeed, is not here to confront the witness ? The letter of the Act excludes the witness, and we do not feel authorized to make this an exceptional case. Very clearly, from the facts as they transpired at the settlement, the note with security was un*473derstood by the parties to be a settlement of the trust, a novation by which a note with security was taken in lieu of the claim. The parties seem specially to have had this in view. It was taken as assets, not as a contract then made; it was so understood; the wards evidently looked to the security ; they preferred that .to the obligation of the executor, and this is the more evident from the fact that it was specially agreed as to the note taken of the executor on that day, that this last note was not taken in discharge of the trust. The executor was still to be liable on that note as executor. It is purely a question of intention. We held this in another case at this term, to-wit: the case of Coleman vs. Davis, from Richmond. The mere giving of the note even might not be a settlement, perhaps even adding a surety to it would not change the character of the debt, but the circumstances in proof show that it was the intent so to do. The difference between the note with security and the note without was well understood and remarked upon; one was considered and taken as assets; the other as a mere memorandum of the amount due as executor. Our judgment is, that the note without security is still a trust debt, and the notes taken as assets from Mr. Thomas, are not trust debts, in the sense of the Statute of Distributions.
As to the other note, the one taken from the co-executor. It is very plain that by the express contract of the parties that executor was discharged. In lieu of their joint debts against both the executors, the cestui que trusts agreed to take the note of one of the executors, turned over to them by the other, and they gave him a full discharge. This note was a personal debt of Mr. Thomas to the other executor. True, it was given for money of the estate, received by and charged to him. But on the receipt of it, they acquitted him of his trust, and as soon as this occurred the trust ceased. Mr. Thomas could not, by his agreement, give it again a trust character. It would be a dangerous rule to permit a man thus to give priority to one over another in the distribution of *474his assets. The foundation of the priority of trust debts is, that the intestate has no estate until trust debts are paid; it. is not his ; he only has it in trust. To come within the rule, the debt must be in fact a trust debt; it is not sufficient that it shall be agreed to be so considered. Other persons have rights in this besides the deceased, and it is the law and not the agreement of the parties that regulates the priority.
Judgment reversed.