The first section of the act of February 14, 1867, “ in relation to the competency of witnesses,” is as follows: “ That in suits and proceedings before any court or officer in this State, other than criminal cases, there shall be no exclusion of any witness, because he is a party, or interested in the isgjie tried; except that in suits or proceedings by or against executors or administrators, (as to which a different rule is not made by the laws of this State,) neither party shall be allowed to testify against the other, as to any transaction with, or statement by the testator or intestate, unless called to testify thereto by the opposite party.”—Acts 1866-7, p. 435.
The defendant below was the administrator of the estate of Bobert Stuckey, deceased, and, as such, had the possession of the wátch and chain which are the subject of this suit, claiming them as the property of the estate of his intestate. The plaintiff claimed title to the watch and chain, by virtue of an alleged parol gift of the same to her, from Bobert Stuckey in his life-time ; and she was permitted, against the objection of the defendant, to establish the parol gift by her own oath. Was she a competent witness, for that purpose, under the act of the legislature above referred to ?
The suit, it is true, was instituted against the defendant in his personal character. But the right of action, as the record discloses, was based upon an alleged conversion by him, in wrongfully withholding the property as belonging to the estate of his intestate. This made it, vntliin the meaning and intent of the statute, a suit against an administrator. To exclude a witness occupying the relation contemplated by the statute, the phraseology of the act does *705not require that the suit or proceeding shall, in all cases, Tbe by or against an executor or administrator, in his representative character. But when either party is an executor or administrator, and the estate represented by either is exclusively interested in the subject-matter of the suit, “neither party should be allowed to testify against the other, as to any transaction with, or statement by the testator or intestate, unless called to testify thereto by the opposite party.”
To place a different construction upon the act, would not, we think, be agreeably to the intent of the legislature; and the rule is well settled, that if, from a view of the whole law, the intent is different from even the literal import of some of its terms, the intent should prevail. Where property is held by one as the legal representative of a deceased person, he having obtained the possession of it as such representative, suit may be brought against him for the property, either in his personal or representative character. JEasly v. Boyd, 12 Ala. 684. Therefore, the appellee in the present case could as well have sued the appellant as administrator, as to have instituted the action in its present form. Had the former course been pursued, it is too clear for controversy, that she would not have been a competent witness. Should the statute, then, receive such a construction as would place it within the power of a party plaintiff, in cases like the present, to avoid its positive mandate, at his own election as to the mere form of his remedy ? An affirmative answer to this question would place us in conflict with the well-known rule of construction above stated» which requires effect to be given to a statute, according to its manifest intent—would be sacrificing the substance of the law to mere form. A sound public policy demands that the exception contained in the statute should be enforced. The living party should not have the advantage of being a witness, in his own case, against the estate of a dead man, when he offers himself to prove any transaction with, or statement by the deceased.
Our construction is supported by the adjudications of other States, upon statutes similar to our own. Section 310 of the Code of Ohio provides, that “ no person shall be *706disqualified as a witness, in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise and section 313 of the same Code provides, that “ no party shall be allowed to testify by virtue of the provisions of section three hundred and ten, where the adverse party is the executor or administrator of a deceased person, when the facts to be proved transpired before the death of such deceased person,” &c. A residuary legatee, pursuant to a statute of the State of Ohio, had executed a bond, conditioned to pay all the debts of the testator, and suit was brought against the legatee upon this bond, by a creditor of the estate, based upon an alleged non-payment of his debt. Upon the trial, the plaintiff was sworn and examined as a witness in his own behalf, against the objection of the defendant. The supreme court of Ohio held, that the court below erred in permitting the plaintiff in the action to testify as to transactions which had occurred between him and the testator, against whose estate he was seeking to establish a claim, although the executor, as such, was not a party to the action. In their opinion, the court say: “ Section 313 of the Code is in, the nature of a statute against frauds and perjuries. The testimony of the party to the action, though generally admissible, is excluded, when it relates to transactions between him and a deceased person, against whose estate he asserts a claim. It was considered that there would be a temptation, in such a case, to fraud and perjury, against which protection should be given by excluding the testimony. The reason of the law certainly applies in this case with the same force as if the residuary legatee had given the ordinary bond, and been sued as executrix. The form which the remedy given to the creditors of the estate assumes, can properly make no diference.”—Stevens v. Hartley, 13 Ohio, 525.
The reasoning of the court in the case above cited, applies with full force to the case at bar, and fully sustains the conclusion we have attained. See, also, the following authorities, which likewise, in principle, support our conclusion: Kimball v. Estate of Baxter, 27 Vermont, 628; Fischer v. Morse, 9 Gray, 440; Ayres v. Ayres, 11 Gray, 130; Hubbard v. Chappin, 2 Allen, 328.
*7072. Proceeding to consider the other questions presented by the assignments of error, we hold, that the court properly permitted the sheriff to amend his return, so as to show the service upon appellant of a copy of the interrogatories propounded to the witness, Dorinda J. Snow, and committed no error in refusing to suppress the deposition of said witness.
3. The appellant proposed to prove that the claims, against the estate of Robert Stuckey, deceased, amounted to more than the assets of the estate. The court refused to allow this evidence to be introduced, unless the estate of the deceased had been declared insolvent; and in this ruling committed no error.
4. The facts deposed to by the witnesses, W. H. Stuckey and John Thurmond, relative to their acquaintance and intercourse with the deceased, Robert Stuckey, and his mental and physical condition, at or about the time of the alleged gift by him to the appellee, rendered it competent for each of said witnesses to give his opinion on the question of the mental capacity of the deceased to dispose of his property, at the time of the gift. We thus hold, upon the authority of previous adjudications of this court upon the question.—Norris v. The State, 16 Ala. 776 ; In re Carmichael, 36 Ala. 514, and cases there cited.
It results from what we have said, that the court below erred in its ruling relative to the competency of the appellee as a witness, and also in excluding the testimony of the witnesses Stuckey and Thurmond, as shown by the record.
Let the judgment be reversed, and the cause remanded.