(after stating the facts as above). It is claimed that the action of plaintiff in claiming the ownership of the property in dispute in the present action of claim and delivery in the district court is totally inconsistent with his claim for exemptions as the husband of the deceased which "was later filed in the county court, and that the filing of such claim was an acceptance of the judgment of the district court in the replevin action, and a motion is made to dismiss the appeal for this reason. We think, however, that there is no merit in this *463motion. The record shows that in addition to the certificates of deposit and the diamond ring in controversy there was property in the estate to the value of $575, and though an allowance seems to have been claimed by the executrix of said estate to the amount of $650 for expenses incurred, no decree of final distribution seems to have been entered. Nor do we believe that the mere fact that the claim for exemptions was filed for more than the condition of the estate would warrant, and that such exemption, if allowed, would necessarily involve some, if not all, of the property sought to be replevined, would make the claim so inconsistent with the prior assertion of the ownership of the certificates of deposit and of the diamond ring in question as to amount to an election of remedies, and justify a dismissal of the appeal. Plaintiff, indeed, does not take to inconsistent positions. He merely says that he is entitled to the property because he owns it, and that, even if the court holds that he does not own it, he is still entitled to it as his exemption as the husband of his deceased wife.
The point next to be considered is the contention of defendants that the action of replevin will in no event lie under the facts of the case, but rather one in equity, and that since the plaintiff has filed no claim in the probate court, his right of action is barred.
We agree with the defendants in their first proposition in so far as’ the certificates of deposit are concerned, but not in regard to the diamond ring. We, indeed, concede the general proposition that merely equitable titles may not be litigated or accountings obtained in an action of replevin or claim and delivery; that only he who has the right of immediate possession may bring the action; that in such cases the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of the defendant. Leete v. State Bank, 141 Mo. 584, 42 S. W. 927.
This rule, however, though applicable to the certificates of deposit,-is not applicable to the diamond ring,'and the verdict as directed by the learned trial court was therefore improper. • It is to be remembered, indeed, that the case comes before us on a motion to direct a verdict for the defendant, and in such cases we must give to the plaintiff’s evidence the most favorable construction which is reasonably possible. If we do so, the action in so far as the ring is concerned is not one for an accounting or to establish an equitable title in prop*464erty in the bands of an innocent third party, but to recover from a bailee personal property wbicb sbe or be bas wrongfully converted and detailed.
It is quite clear to us that the petitioner, Lottie A. Becker, bad no right as an individual to intervene in the case, as sbe bad individually no interest in the property and no right to the immediate possession thereof. It is true that sbe testified that prior to the death of Mrs. Truman, Mrs. Truman gave the property to her. Sbe, however, subsequently scheduled the property as an asset of the estate, and elected to take it under the will, and based her whole claim upon such will. She thus relinquished any claim she may have had under the gift. In fact, in her petition she says nothing of the gift whatever. The court, however, merely directed a verdict in her favor as administratrix, and therefore no error was committed in so far as she was individually concerned. When we come to the trust company,' the position is the same. The property at the most was the property of the estate, and did not belong — at. least until the final decree of distribution — to the intervener, Lottie A. Becker. It goes without saying that an ad-ministratrix or an executrix of an estate cannot pledge the property of that estate as security for her own bond which is given to protect the estate, the creditors thereof, and the very property which she seeks to pledge. The position of the trust company was therefore merely that of a custodian, or as a servant or agent, of the executrix for safe-keeping.
The question remains whether as executrix of such estate, the inter-vener, Lottie A. Becker, was entitled to the possession of such property as against the plaintiff, George II. Truman, or, conversely, Avhether George II. Truman was entitled to the possession of such property and could maintain a replevin action against Lottie A. Becker as such executrix.
We are clearly of the opinion that as far as the diamond ring was concerned the action of replevin or of claim and delivery would lie, and that there was enough evidence introduced by the plaintiff, which, if taken alone, would justify a submission to the jury, the rule being well established that on a motion to direct a verdict in favor of the defendant, the evidence of the plaintiff must be taken in its most favorable light.
The evidence of the plaintiff in regard to the ring was as follows: *465“I bought three or four rings, — three anyway. I bought one in the first place. The ring was about a carat and a half and then X bought another two-stone ring. I don’t remember the weight. Then this other ring there was traded. There was some exchanges made around on it and differences paid, but of course that was exchanged in with the other ring to get a little larger one. I went down there and looked the rings over before they were bought, and they were paid for in payments. Mrs. Truman went and paid the payments, I gave her the mpney. I never made any payments myself that I remember. She did almost all that business herself, paying bills, etc.I don’t know what the amount of the difference was, when my wife deposited a ring with XIagen and got this ring exhibit O. I think the payments were made at different times. This was the information I got from Mrs. Truman. I didn’t go there when the money was paid. I took her word for it. I know she was anxious about it. I objected in the first place, but finally consented to her making the change.” And again: “In regard to the rings, there are three or four of those rings. I bought those rings and paid for them; bought them from Martin Hagen down here. Mrs. Becker had a ring and wanted to trade it with her mother. Her mother came to me and asked me several times for my consent to allow her to trade. I had bought these rings and paid- for them. Finally I consented. Then she went to work and made another exchange and got this larger diamond. The second exchange was made at Martin Hagen’s. The trade was made, she paid part, and I furnished the money to pay the difference in the bargain. Mrs. Truman figured diamonds was the same as money. She could have the use of them and they were increasing in value, and it would be the same as laying up money, and I consented to that and let her have the diamonds so that she could have them to use.”
If we construe this testimony in its most favorable light, and this we must do, the executrix and the trust company are in the same position as the finder of lost goods who, having paid no consideration therefor, refuses to deliver them to the true owner. In such a case it is elementary law' that claim and delivery will lie. Cobbey, Re-plevin, § 3554. As far as this ring is concerned, indeed, we have a case where a ring belonging to a husband, held by his wife as a gratuitous bailee and for the benefit of the bailor, is given by such bailee to her *466daughter, wbicb in itself is a conversion, and the daughter then schedules the property with the assets of the deceased wife’s estate, and thereafter deposits such property as security for her own personal bond as an executrix. This, in itself, is another conversion. The action, in short, is not one to assert an equitable title, but to follow and recover one’s own specific property. The court therefore erred in taking the case from the jury in so far as the diamond ring was concerned. Farrow v. Farrow, 72 N. J. Eq. 421, 11 L.R.A.(N.S.) 389, 129 Am. St. Rep. 714, 65 Atl. 1009, 16 Ann. Cas. 507.
When we come to the certificates of deposit, however, we are of the opinion that even if the facts were as claimed by the plaintiff, the action of replevin or of claim and delivery would not lie. The reason for our holding is that the legal title to the certificates of deposit seems at no time to have been in the plaintiff, but an equitable title merely, and that the right of the plaintiff, if any, was to follow a trust fund, rather than to seek to recover specific property of which he had at no time the right of immediate possession, xin action of replevin will not lie where the existence of an equitable trust is necessary to be proved before the right to the possession by the complaint can be established. We cannot, in fact, -do better than to quote from the language of the supreme court of New York which was used in a somewhat similar ease. “This action,” the court said, “cannot be maintained. The scrip was held by the defendant, on the books of the Great Western Insurance Company, in his own name. The legal title was in him. As the scrip stood in that way for several years, it is a legal inference that it was by the consent or permission of the plaintiff. A demand and refusal to transfer did not give the plaintiff the title to the scrip. Po-session of the scrip, without a transfer, would be of no avail to the plaintiff. All that the plaintiff could recover (assuming that he could maintain replevin), would be the possession of that which would not avail him, viz., scrip standing in the name of Allen. Such a recovery would be nugatory. But the plaintiff cannot, in my opinion, recover scrip of which the legal title is in the defendant by his permission, in an action of replevin; or of claim and delivery, which is an action of the same legal nature. If the plaintiff desires the identical scrip, his remedy is in equity. If he desires damages only, he can, perhaps, maintain an action on the case.” Leonard, J., in Wheeler v. Allen *46749 Barb. 460, affirmed in 51 N. Y. 37. See also Leete v. State Bank, 141 Mo. 584, 42 S. W. 927; Bridgers v. Ormond, 148 N. C. 375, 62 S. E. 423.
Even though replevin would not lie for the certificates of deposit, however, it would, as we before stated, lie for the recovery of the ring, providing the proper proof was adduced. Enough evidence was introduced to justify a submission of the case to the jury on the question of the ring, and the trial court committed error when it directed a verdict in favor of the defendants for the possession of both the ring and the certificates of deposit, and the verdict as a whole was improper. A new trial, therefore, must be had.
A new trial being necessary, and a decision of the question being necessary for the proper conduct thereof, we further add that it is clear to us that the testimony of the intervener, Lottie A. Becker, and of all other witnesses, save the plaintiff husband, as to the conversations alleged to have been held by them with the deceased, Carrie L. Truman, was inadmissible. The original statute on the subject was ¶ 2, of § 5653, Bev. Codes 1899, being ¶ 1 of chapter 17 of the Laws of 1879, amended. This section provided that “in civil actions or proceedings by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or ordered entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party. But if the testimony of a party to the action or proceeding has been taken and he shall afterwards die and after his death the testimony so taken shall be used upon any trial or hearing in behalf of his executors, ad7 ministrators, heirs at law or next of kin, then the other party shall be a competent witness as to any and all matters to which the testimony so taken relates.”
Chapter 109 of the Laws of 1909 amended this section by adding the following proviso: “Brovided, further, that in any action or proceeding by or against any surviving husband or wife touching any business or property of either, or in which the survivor or his or her family are in any way interested, such husband or wife will be permitted, if they shall so desire, to testify under the general rules of evidence as to any or all transactions and conversations had with the *468deceased Husband or wife during their lifetime touching such business or property.” It will be noticed that this provision or amendment merely relates to conversations held between the surviving husband or wife and the deceased husband or wife, and relates to no other person whatever. There is nothing in the statute or in 'the rules of evidence which would justify the admission in evidence of conversations held between the deceased and a third person, and not in the presence of the surviving husband or wife. Such evidence would have been clearly hearsay if introduced during the lifetime of the deceased, and we find nothing in the statute which changes the general rule as to hearsay evidence.
The failure of the appellant to file a claim in the probate court did not preclude him from maintaining this action.
The judgment of the District Court is reversed and the cause is remanded for further proceedings according to law.