The following opinion on rehearing was. filed March 2, 1904. Judgment of reversal adhered to:
4. Competency of Witness. In a proceeding for the distribution of the estate of an intestate, the administrator is an adverse party, and where one of the issues between rival claimants is a marriage of the intestate with a third party, the testimony of such third party is inadmissible on such issue, under the' provisions of section 329, Code of Civil Procedure. Albert, C.On the 3d day of February, 1895, Hans C. Sorensen died intestate, leaving an estate in Valley county, where he resided at the time of his death. Some of his collateral kin filed a petition in the county court of that county for letters of administration, alleging that the intestate had left neither widow nor issue, and that they were his next of kin and heirs at law. One claiming to be his widow appeared in the proceeding, and claimed the right to nominate an administrator of his estate. From the judgment of the county court on that branch of 'the case an appeal was taken to the district court, where judgment was given in favor of the party claiming to be the widow of the intestate. An opinion of this court, reversing the judgment of the district court, is reported under the present title in 56 Neb. 729.
On a second trial in the district court, the court found that the party -claiming to be the widow had never been married to the intestate, and gave judgment denying her right to nominate an administrator, and granting administration on the petition of the.collateral kin. No appeal was taken from this judgment, and it is in full force and effect.
Afterward, two brothers, and the children of a deceased brother and sister of the intestate, filed a petition in the county court for a distribution of the assets of the estate, alleging their relationship to the intestate, and that they were his only heirs at law. Thereafter, one Alfred Hans Sorensen, by his guardian, filed an answer and cross-petition, wherein the relationship of the parties as alleged in the petition for distribution was admitted, and all the *492other allegations thereof denied. He alleged, as grounds, for affirmative relief, that on the 16th day of October, 1894, the intestate had married one Ellen Ferguson (the party who claimed as widow in the former proceeding) and that he is the issue of said marriage, and the son and heir at law of the intestate. He also prayed for a decree of distribution.
To the affirmative matters alleged in the answer and cross-petition, the petitioners interposed a general denial. They also pleaded the judgment rendered in the proceedings for the appointment of an administrator as an- estoppel on the question of the alleged marriage. .
A trial was had, which resulted in a judgment in favor of the cross-petitioner. An appeal was taken to the district court, where the petitioners filed new pleadings, which were stricken from the files, and the cause set down for trial on the pleadings filed in the county court. A trial was had, which also resulted in a finding and judgment for the cross-petitioner. The petitioners brought the case here on error, and an opinion, reversing the judgment of the district court, was filed therein, and is reported ante, p. 483; a rehearing was allowed, and the case is now before the court for -the second time.
The recommendation in the former opinion for the reversal of the judgment, is based on the ruling of the trial court permitting the defendant in error to open and close. The opinion contains an extended discussion of the principles governing the right to open and close, but it is now thought that the discussion is not altogether pertinent to the question as presented by the record in this case. The proceeding is in rem} and all persons interested in the estate are parties. Such proceedings ordinarily are binding, not only upon those actually before the court, but on all the world. It is obvious, therefore, that those actually before the court may not, by their pleadings, or otherwise, bind those not before it, nor dispense with the proof of any of the ultimate facts essential to a decree of distribution. Each party must rely on the strength of his own case, and *493not on the weakness of the opposition. Hence had no evidence been given, the court would not have been warranted in entering a decree of distribution. In other words, both parties must have failed. That being true, neither the statutory provision to the effect that the party who would be defeated were no evidence given on either side is entitled to open and close, nor the ancient rule, of which it is declaratory, applies-to cases of this character. With that provision out of the way, neither party had the absolute right to open and close. Both asked, the distribution of the estate, and each claimed the whole, to the exclusion of the other and of all other persons. The question before the trial court was not, which of the parties actually before it was entitled to a decree, but whether either of them was, and, so far as the right to open and close is concerned, they were on equal footing. They occupied a position analogous to that of rival claimants for the same fund, who have been brought before a court of equity by a bill of interpleader, requiring them to interplead for the fund, in order that their respective rights may be ascertained and determined and the plaintiff exonerated.' As to the right to open and close in such cases, Mr: Thompson, in his work on Trials, section 242, says: “It is supposed that such a case must yield to the sound discretion of the court.” See, also, Loudon v. Coleman, 62 Ga. 147. Whether such discretion is absolute, is a question that does not arise in this case, because there is nothing in the record tending to show that it was abused. We are satisfied that the conclusion reached on the former hearing upon this point is erroneous.
It Avill be remembered that the defendant in error claims as heir at law, on the ground that he is the issue of a marriage between his mother and the intestate. The plaintiffs in error contend that he is concluded on the question of a marriage between his alleged parents by the judgment in the proceeding had for the appointment of an administrator, Avherein the court found that the mother had never been the wife of the intestate. In support of this conten*494tion it is argued, as upon the former hearing, that the proceeding for the appointment of an administrator was in rem, and all the world, including the defendant in error, were parties, and are concluded by the matters litigated and judicially determined in such proceeding. That the proceeding was in rem, and that all the world were parties thereto, may be conceded. It will also be conceded, that, ordinarily, a judgment in rem, rendered by a court of competent jurisdiction, is binding on all persons, and is not open to collateral attack. But it does not necessarily follow that the whole world are hound by every matter litigated and judicially determined in the proceeding of which such judgment is the product. The principal relief sought in a proceeding in rem, is usually an adjudication upon the status of some person or thing, and the judgment, ipso facto, renders the status of such person or thing what it declares it to be. Woodruff v. Taylor, 20 Vt. 65. From the very nature and purpose of such judgment, it is essential that it be conclusive and binding on all persons. But in addition to the principal relief sought in a proceeding in rem, in which, in a general way, all persons may be said to be interested, there is also commonly involved some personal right pertaining to some particular person or class, which may become the subject of litigation and adjudication in such proceedings between the parties claiming such right, and to which all other parties to the proceeding may be wholly indifferent. While it is essential to the repose and tranquillity of society that a judgment in rem, so far as it goes to the principal relief sought in the proceeding and concerns the rights which each person shares in common with every other person, should be binding on all persons, it would be unreasonable and oppressive to hold that all are bound by the litigation and determination of collateral questions, arising between parties litigating their personal rights in the same proceeding. If such w-ere the law, no man could safely stand aloof while such proceedings are in progress, however indifferent as to the ultimate result, because he could *495never know to what extent his rights, wholly disconnected from the main purpose of such proceedings, might he affected by the issues framed between other parties therein for the determination of questions concerning only themselves. Such a rule would lead to infinite complications.
It is true that it is allowable to reason back from a judgment. Hence, a judgment in rem, which, as we have seen, is binding on the whole world, stands, as to all persons, as an indisputable conclusion; and where it could only be drawn from certain premises, such premises are equally indisputable with .the conclusion itself. Burlen v. Shannon, 99 Mass. 200. But we must view the conclusion in the light of the main purpose of the proceeding in question, namely, the grant of administration on the estate of the intestate. As to every fact essential to such purpose, the judgment is conclusive and binding on all persons, because it is a conclusion which could not have been reached without a finding of such facts. The facts essential to a grant of administration are: (1) That the person on whose estate administration is asked died intestate; (2) that at the time of his death he was an inhabitant or resident of the county in which the proceeding is brought, or a nonresident of the state, and left an estate to be administered in such county. Compiled Statutes, chapter 23, section 177 (Annotated Statutes, 5042). , Such facts are the premises from which a grant of administration must be drawn as a conclusion, and, like the grantor judgment itself, are indisputable in a collateral proceeding between those claiming through such proceedings or under the intestate. Bradley v. Missouri P. R. Co., 51 Neb. 653. There is one exception to the foregoing rule, which is: If the party on whose estate such proceeding is had is alive, the proceeding and all judgments and orders therein are absolutely void. Van Fleet, Collateral Attack, sec. 610, and citations. Many reasons have been given for this exception, none of which seem to be entirely consistent with those supporting the rule as to the conclusiveness of other jurisdictional facts. It is thought that the true *496reason underlying the exception is to be found in this distinction between the other jurisdictional facts and the death of the intestate, namely, the former go only to the jurisdiction of a particular court, while the latter goes to the jurisdiction of any and all courts to grant administration.
But the right of any particular person to nominate an administrator, or to letters of administration, by reason of his relationship to the intestate, is not one of the essential facts upon which the grant is based. Such right is purely personal and may be renounced by the party entitled to exercise it. It is not an absolute right, because the person claiming it may be incompetent, or may be one of a class the members of which share the right in common, or, for some other reason, the case may call for the exercise of the discretion of the court. Atkinson v. Hasty, 21 Neb. 663; Spencer v. Wolfe, 49 Neb. 8. There is no presumption that one not claiming the right to nominate an administrator, or to letters of administration, has any interest in. the litigation between others concerning such right. It would be absurd to require such party to embroil himself in a controversy in which he had no interest, and to resist a judgment or decree to which he had no objection, and which of itself could work him no harm, merely to prevent an objectionable finding. We think the true rule is that a judgment in rem is binding and conclusive upon all persons as to every matter necessarily involved in the adjudication upon the status of the person or thing which is the subject matter of the proceeding, but as to matters involved in collateral litigation therein, between particular parties, and not necessarily involved in a judgment of that character, it is binding only upon those who actually litigated such matters and their priyies. That rule, as applied to the facts in this case, is fully supported by the following: Blackburn v. Crawfords, 3 Wall. (U. S.) 175; Kearney v. Denn, 15 Wall. (U. S.) 51, 57; Shores v. Hooper, 153 Mass. 228, 26 N. E. 846; Spencer v. Williams, 40 Law Jour. (Pro.) *497(Eng.) 45; In re Estate of Nugent, 77 Mich. 500, 43 N. W. 889; In re Lois McCarty, 81 Mich. 460, 45 N. W. 996.
.
But as to the parties who actually litigated the question of the alleged marriage between the intestate and the mother of the defendant in error in the proceeding for the appointment of an administrator, the judgment rendered in such proceeding is conclusive, and precludes a reexamination of that question in any subsequent litigation between them. Blackburn v. Crawfords and Kearney v. Denn, supra. It is claimed by the plaintiffs in error that the fendant in error is privy to such judgment, and is, therefore, bound by it as effectually as though he had actually participated in the litigation of that question. It is elementary that a judgment is conclusive, both on the parties and their privies. But privity, so far as concerns the effect of a judgment over property rights, at least, does not arise from mere relationship by blood or affinity, nor because two parties may have an interest .in the subject matter of the litigation. The term “privity” implies a relationship, by succession or representation, between a party to the first action and a party to the subsequent action, in respect to a matter adjudicated in the first. Samp v. Franklin, 144 N. Y. 607. The mother of the defendant in error did not, in any legal sense, represent him in the former proceeding, nor is there the slightest relationship between them by succession. Hence, so far as. his rights in these proceedings are concerned, he is not a privy to the former adjudication of the question of the marriage between his mother and the intestate, and is not bound by it.
On the trial in the present proceeding, the mother of the defendant in error was permitted, over the objections of the plaintiffs in error, to testify to facts tending to show a common-law marriage between herself and the intestate, and it is now claimed that her evidence was erroneously received. Section 329, Code of Civil Procedure, provides that “no person having a direct legal interest in the result of' any civil action or proceeding, when the adverse party *498is the representative of a .deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless,” etc. This section, as well as that of which it is amendatory, has been a fruitful source of controversy, and the subject of frequent interpretation in this court. The word -“representative” has been held to include any person or party who has succeeded to the rights of the decedent, ’ whether by purchase, descent or operation of law. Kroh v. Heins, 48 Neb. 691; Sorensen v. Sorensen, 56 Neb. 729, and cases cited. Those cases leave no room for doubt that an administrator, in proceeding's of this character, is a representative of his intestate.
That the administrator is an adverse party, as to all persons claiming the right to share in the distribution of the personal estate, seems to us equally clear. ITe is in possession of such estate by virtue of his office, and the object of the proceeding is to terminate his right of possession. To that extent, at least, he is an adverse party within the meaning of the statute.
It remains to determine whether the witness has a direct legal interest in the result of the proceeding. In the consideration of that question it must be kept in mind that the right of the defendant in error to the estate, or any portion of it, hinges on the question of the marriage of his mother, the witness, with the intestate. If that marriage be established, his right to inherit the estate, to the exclusion of the plaintiffs in error, follows as a legal necessity. The fact of such marriage is the issue between the plaintiffs in error and the defendant in error in this proceeding, and a decree in favor of either of such parties will, of necessity, involve an adjudication of that issue, which, as between such parties, will operate as an estoppel and foreclose further inquiry upon that question. This follows from what has been said in a former part of this opinion on the subject of res judicata. The practical result of a decree in favor of the defendant in error would be to eliminate the plaintiffs in error from the list of *499claimants, because, in any subsequent contest between them and the defendant in error for a share in the estate, ‘ they would be met with the plea of res judicata on the question of his mother’s marriage with the intestate, which is decisive of his right to inherit to their exclusion. It is not difficult to see how the witness must have a direct legal interest in a result of that kind. In a contest between her and the plaintiffs in error for a share in the estate, she is concluded, as we have seen, by the adjudication in the proceeding had for the appointment of an administrator, wherein it was adjudged that she had never been married to the intestate. But an estoppel by judgment, like an estoppel of any other kind, must be mutual. That is to say, a judgment which is not binding on both parties to a proceeding, is binding on neither. We have already seen that the judgment in that proceeding is not binding' on the defendant in error; therefore, in a contest between him and the witness in regard to the estate, such adjudication would not be binding upon her, and would leave the question of her marriage Avith the intestate open to inquiry. In short, if the present proceeding result in a final decree in favor of the defendant in error, it Avould eliminate from the list of claimants the only parties Avho may successfully invoke the doctrine of res judicata against the Avitness, and Avould leave her free to contest her claims with the successful party, unhampered by such adjudication. That she has a direct legal interest in such result seems too clear to admit of argument. Besides, this proceeding is not exclusively between the plaintiffs in error and the defendant in error. It is a proceeding in rem, and in such proceeding it is the duty of the court to protect the interests of all the-parties, Avhether actually before the court and participating in the litigation, or otherAvise, and render a decree in accordance Avith the evidence. Compiled Statutes, ch. 23, sec. 289 (Annotated Statutes, 5154. If the evidence justifies a finding for the defendant in error, the evidence which would. Avarrant such finding would also warrant a finding that the witness is entitled to *500a share of the personal estate as surviving widow of the intestate. Compiled Statutes, .chapter 23, section 176 (Annotated Statutes, 5012). With the plaintiffs in error out of the contest, as they would be by a finding in favor of the defendant in error, there would be no one left, as we have seen, who could successfully invoke the adjudication in the proceeding for the appointment of an administrator against her claim as such widow, and it would.be the duty of the court to assign her a due portion of the estate as widow of the intestate, which would at least give her the right of possession as against the administrator. There is no doubt in our minds that the reception of her evidence was error, and as the decree is based almost exclusively on her evidence, the prejudicial character of the error is obvious. ,
1. Administrator Not Adverse Tarty in Contest to Establish. Heir-ship and for Distribution. In a contest between rival claimants seeking to establish heirship and have distribution of the estate of a decedent, the administrator of such estate has no official interest. As the representative of the deceased person he is not an adverse party to any of the claimants in the controversy. 2, Marriage: Peoojt, An existing agreement between a man and woman to marry at a future day conclusively negatives tbe claim of a marriage per verba de prwsenti between the same parties.*500Other errors are assigned and argued, but what has already been said dispenses with the necessity for their consideration.
For this error in the reception of evidence just noticed, it is recommended that the former judgment of this court, reversing the judgment of the district court, be adhered to.
G-lanville and Barnes, GO., concur.By the Court: The conclusions reached by the commissioners are approved, and it is ordered that the former judgment of this court, reversing the judgment of the district court, be adhered to.
Judgment oe reversal adhered to.