We think that the referee erred in excluding the testimony of the defendant, as to the terms of the contract between him and the *374plaintiff's deceased husband, Robert W. Titus. The plaintiff sues in her individual capacity and not as executrix of her deceased husband. The contract which she seeks to have enforced was made with her after her husband’s death. Both parties testified that the agreement between them was, that the defendant should work the farm on the same terms as ho had worked it under the agreement with the plaintiff’s husband.
That was a verbal agreement. The Code of Civil Procedure has no application to such a case, for the reason that the action does not affect any title or interest which the plaintiff has derived from, through, or under her deceased husband. Her title to, or interest in, the subject matter in controversy is. derived from the contract between her and the plaintiff. It has in no sense come to her by succession from her deceased husband.
By his will the ownership of the property embraced in the contract was transferred to her, but the contract has no relation to such ownership, but is limited to the management of the property only. The reference in that contract to the previous one between the defendant and the deceased simply adopts the latter, and makes it a part of the former. Evidence of the contract they adopted is essential to show the contract actually made by the plaintiff, but it would neither prove or disprove any claim which the plaintiff has derived from or through her deceased husband. No claim of that kind is involved in the action.
This error being decisive of the case, we need not discuss other excejitions raised upon the trial.
The judgment must be reversed, the order of reference vacated, and a new trial granted, with costs to abide the event.
Present — BabNAejd, P. J., Gilbeut and DyemaN, JJ.Judgment reversed, and new trial granted at circuit, costs to abide event.