I am satisfied that the defendant, Jerome Croul, was a competent witness in this case.
It was admitted upon the argument by plaintiff’s counsel, as it conclusively appears from the record, that the defendant had not converted the bonds in question in this suit to his own individual use, but that he took possession of them for the estate of Chauncey Hurlbut, deceased, and has always held them for- said estate. It appears that on his first step as executor of Chauncey Hurlbut’s estate he inventoried these bonds as the property of such estate, and has ever since accounted to the probate court of Wayne county for them and the interest accruing upon, them.1 There is no disguising the issue in this suit. It is really a contest between the estates of Philinda and Chauncey Hurlbut for the ownership of these bonds. With such contest Jerome Croul has no concern, save as executor of the latter estate; and he has and claims to have no personal interest in the subject-matter of this suit. This is admitted by the counsel for plaintiff, and yet it is gravely asserted as a matter of law that the plaintiff has a right, by planting his action against Croul individually, not only to change apparently the whole outward face of the contest, but so to shape the conduct and issue upon the trial as to shut out the testimony of Croul as an “ opposite party,” and, *17as a consequence thereof, to recover a large sum of money.from him personally out of a transaction in whichi it is admitted he acted as executor, and not for himself, and which he is not allowed to explain, though fraud is charged against him as such executor. There is no excuse for this course, because by the action of Croul the bonds or their proceeds have not been lost to plaintiffs intestate or her heirs. The estate of Chauncey Hurl-but is amply sufficient to pay the judgment in this case-twice over.
When we come to examine the question whether or not. Mrs. Williams was a competent witness for the plaintiff it. will be plainly apparent why this suit was planted against Jerome Croul individually, and not against him as' executor. By making him individually the party defendant, the plaintiff has succeeded, under the interpretation of the statute by the court below, to which I shall soon refer, in proving his case by 'the principal heir of Mrs. Hurlbut, and has closed the mouth of Croul against a denial of her story. If this is a correct construction of the statute, then it is capable of being made the instrument of the most outrageous -injustice, when its-enactment was intended to prevent fraud and injustice, and it opens a way by which the estates of deceased persons may be more easily robbed than if no such statute-existed; and that, too, by the testimony of those whom the statute intended to debar from giving, evidence in-their own behalf of facts equally within the knowledge» of the deceased.
The statute, aé it now exists (A&t No. 139, Laws of 1885), having been frequently amended since its first enactmént, reads as follows:
“When a suit or proceeding is prosecuted or defended' by the heirs, assigns, devisees, legatees, or personal rep*18resentatives of a deceased person, the opposite party, if examined as a witness on Ms own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person: * * * Provided, that whenever the words ‘ the opposite party ’ occur in this section, it shall be deemed to include the assignors or assignees of the claim,- or any part thereof, in controversy.”
It is evident that this statute is intended to reach the real party in interest, and not a mere nominal party, who is not interested in the result of the allowance or disallowance of the claim against the estate of a deceased person, except as it becomes his duty as executor or administrator to prosecute or defend a suit in which the estate is interested. The proviso was attached in 1885, no doubt, for the express purpose of preventing 'the practice, -which prevailed under the statute before such amendment, of assigning the claim against the estate of a deceased person, and then having the assignor sworn as a witness to prove it. The proviso not only cuts off this method of evading it, but also goes further, and prohibits the assignee from testifying, who, in the absence of a fraudulent intent to evade the law in taking the assignment, would be the person to be benefited by the allowance of the claim. It will thus be seen that the Legislature intended not only that the party owning the claim should not be permitted to testify to the matters equally within the knowledge of the deceased person, but also to prevent any evasion of the. statute. It was in this view of the statute that we held in Duryea v. Granger’s Estate, 66 Mich. 593, that an administratrix, if not interested in the estate as heir or otherwise, was not the “opposite party” mentioned in the statute, and against whom its prohibition runs; citing the fact that in Howard v. Patrick, 38 Mich. 795, the administratrix *19was held within the statute, for the reason that she was also an heir to the estate of her intestate. It was said in Duryea v. Granger’s Estate that the suit might well have been entitled “ The Estate of Joseph Granger, Deceased, v. The Estate of Edward Granger, Deceased.” And in this case now under consideration it might well be entitled “ The Estate of Philinda Hurlbut, Deceased, v. The Estate of Chauncey Hurlbut, Deceased,” as the real controversy is without doubt between these two estates. And while' it is necessary that these two estates should be represented by the respective executors as nominal parties, that persons may be before the court, the real contest is none the less between the estates of the deceased persons, in which the executors have no personal interest, and are affected only as they represent the estate. Notice also the language of the statute, “the ■opposite party, if examined as a,witness on his own behalf,” clearly indicating that he is not to be permitted to testify “in his own behalf” — in other words, in his own interest —as against one whose lips are closed by death.
In the suit which we are considering, the claim against the defendant was established by the .testimony of Mary Ann Williams, who was a niece and heir of Philinda Hurlbut, and Margaret Williams, a daughter of Mary Ann Williams. It appeared clearly from their evidence, before the plaintiff closed his case, that Croul took possession of the bonds and held them as the executor of Chauncey Hurlbut’s estate. Margaret Williams testified that Mrs. Hurlbut called for her bonds, and wanted Croul to bring them back to her; that Croul put her off for a-while, and then said: “ Those bonds were never calculated for you. They belong to Chauncey Hurlbut’s estate;” and that she could not prove that they belonged to her. It was not claimed by any of plaintiff’s witnesses that Croul was trying to get any personal benefit *20from these bonds; and it was apparent when the plaintiff rested that Croul was not the real defendant, but only nominally so, because he had been sued in his individual name; that the real defendant was the estate of Chauncey Hurlbut. The defense then showed the proceedings in the probate court, — the filing of the inventory by Croul, in which these bonds were placed as the property of Chauncey Hurlbut’s estate; and Jerome Croul’s accounts as executor, in which he accounted to said estate for the interest upon the bonds. It was also shown that there had been no distribution of the assets of the estate, and that Philinda Hurlbut in her life-time, and on October 1, 1885, gave him the following receipt for the interest upon these bonds, by such receipt recognizing that he held them as executor of her husband’s estate:
“Beceived, Detroit, October 1, 1885, from Jerome Croul, 40 coupons of $10 each, $400, cut from four per cent. U. S. bonds belonging to the estate of Ohauncey Hurlbut, deceased.
“Philinda Hurlbut.”
But when Mr. Croul attempted to state the conversation with Mrs. Hurlbut by which he became possessed of the bonds, or any material circumstance connected with his possession or holding of the same, equally within the knowledge of Mrs. Hurlbut, he was prevented from testifying, under the ruling of the court that he was the “opposite party” mentioned in and intended by the statute, and therefore incompetent to give evidence of any fact equally within the knowledge of plaintiff’s intestate. The ruling of the court was erroneous.
Another important question arises in the case: Was Mary Ann Williams a competent witness on behalf of the plaintiff to any facts equally within the knowledge of Chauncey Hurlbut, deceased? She is an heir of Philinda Hurlbut, and, as such, interested in the result of the *21suit. The nominal plaintiff is the administrator of Mrs. Hurlbut’s estate, but Mrs. Williams is one of the real parties to the litigation. I think she comes clearly within the intent of the statute. This suit, as heretofore shown, is really a controversy between two estates. Neither Penny, the administrator of Mrs. Hurlbut, nor Jerome Croul, who is defending as the executor of Chauncey Hurlbut, can be said t'o be an “ opposite party.” The real parties are the opposite parties, and Mrs. Williams is one of them. The case of Wright v. Wilson, 17 Mich. 192, referred to in the brief of plaintiff’s counsel, does not touch this case; and Pendill v. Newberger, 64 Mich. 220, also cited -’to sustain the competency of Mrs. Williams as a witness, is not applicable. In the last case, a son an heir at law of a deceased party was held not disqualified to testify to a conversation between his deceased father and the defendant. The ■defendant was living. Had he been dead, and the suit being defended by his executor and administrator, the ■case would be in point. As it is, it has no relevancy to the issue here.
I do not deém it necessary to cite adjudications from other states. This is a question depending upon our own statutes, and I think has been settled' by our own Court.
In Howard v. Patrick, 38 Mich. 795, and Duryea v. Granger’s Estate, 66 Id. 593, the reasoning of the opinions would preclude Mrs. Williams from testifying to facts equally within the knowledge of Chauncey Hurlbut, upon the ground that she is an “opposite party” as .against his estate. In the first case the .testimony of Mrs. Howard was rejected. She was an heir of the estate, us well as administratrix. The question was mooted whether. Mrs. Evans, a sister of Mrs. Howard, and equally with her an heir at law of .her father, was a competent witness under the statute. It was passed, *22however, without decision, because it was shown that Mrs. Evans had assigned her interest in the claim, and had no interest in the result of the suit. This was before the amendment precluding an assignor from giving evidence.
In Bachelder v. Brown, 47 Mich. 366, the real party, who was defending the suit, brought by an executor upon a promissory note, was held to be the real party in interest, and therefore the “opposite party” of the-statute, within its meaning and intent, although he did not appear upon the record as a party to the suit.
In keeping with this principle that the court should look at the real, and not the nominal, parties in a cause, is the case of Wood v. Lenawee Circuit Judge, 84 Mich. 521, where the question to be considered-was an amendment changing the names of parties to a suit. It was there held that the heirs were the real parties to be benefited by the litigation, and that, therefore, the substitution of their names for that of the administrator was admissible.
It was also held in Youngs v. Cunningham, 57 Mich. 153, Mr. Justice Chahplin writing the opinion, which was concurred in by all the members of the Court, that B. F. Cunningham, although not a party to the record, was not a competent witness to testify to facts equally within the knowledge of Geoi’ge Cunningham, deceased, whose wife and children were defending in ejectment, because said B. F. Cunningham had executed to the plaintiff, Youngs, a warranty deed of the land in question. The C°urt said:
“He was under covenant to sustain the title, and the suit was in effect his suit to try the title to the land. If not within the express letter, he comes within the meaning and spirit, of the statute, and is precluded thereby from testifying to facts equally within the knowledge of the deceased.”
*23- In Mundy v. Foster, 31 Mich. 321, in a suit in chancery by a husbhnd to have a trust-deed of his deceased wife declared void, and in which the trustees named in such deed were the parties defendant, in speaking of the husband's evidence, the Court said:
“When he assumed to testify to the verbal_agreement [with his wife], his position, if not literally within the terms of the statute against admitting a surviving party to a transaction to testify in certain cases (Comp. Laws 1871, § 5968), was clearly within its policy; and, in my judgment, he was not a proper witness to prove the making of thé contract.''
It will be noticed that the statute since then has been broadened and made more far-reaching by amendments, all of which amendments have been on thq road to reach the real parties in interest, and to preclude them from testifying to facts equally within the knowledge of the dead person, whose estate is sought to be depleted by such testimony in the interest of the party offering it.
The 'court erred in permitting Mary Ann Williams, an heir at law of Mrs. Hurlbut, to give evidence of conversations between Chauncey Hurlbut and his wife, and between said Hurlbut and the witness.
It is argu-ed that the plaintiff had a right to plant, this suit against Jerome Croul individually, that the action is one of bailment, and that' it is doubtful if Croul could dispute the title of his bailor; but, in any event, the estate of Chauncey Hurlbut could not be bound by ;the result of this suit.
The right to plant this suit against Jerome Croul individually may be conceded, but the right to maintain) it depends upon the facts and circumstances proven in the case. In our opinion, it must be conceded that Jerome Croul hads the right to show that he received these bonds of Philinda Hurlbut, of her own free will and consent, and on the understanding that he received *24them by virtue of his being appointed one of the executors under the will of Chauncey Hurlbut, and as the property of’ said estate; and that he has the right to ■come in and defend as such executor, and to maintain ■and prove by competent testimony that the bonds never ■belonged to Philinda Hurlbut or her estate, but have ■ever been, and now are, the property of Chauncey Hurl-but, and belong to his estate, — and the estate will be bound in such case by the result of the litigation.
In Hillman v. Schwenk and Miller, 68 Mich. 297, and Hillman v. Schwenk, Id. 301, a similar case, the executor of an estate was permitted to indemnify the defendant, and assume the defense of a suit brought upon a promissory note; and it was.held by so doing the estate would be bound by the result; and, further, that in such case the plaintiff would be precluded from testifying to facts ■equally within the knowledge of the deceased, although ¡the maker of the note was the person sued and the •defendant of record. The issue in those cases was similar to the issue in this. The plaintiff claimed to have ■obtained the note from the testator by purchase before Ms death. The executor defended upon the ground that ¡there was no such purchase. Here the claim to the bonds is that they were a gift. The executor’s defense is that there was no gift. In the Hillman v. Schwenk icases the defendants had no interest in the result, except ¡to pay the note to whom it might be found to belong; .•and in this case Jerome Oroul'individually has and claims mo interest in these bonds. His only concern is to ■account to the owner of them. The defense that he is making is the defense of Jerome Oroul as, executor, which it would have been his duty to have made had the bonds been! in the hands of a third person, and such third person had been made a defendant in this suit instead of <Cronl. He could have stepped in, had the third person *25been sued, and defended as the executor of Ohauncey Hurlbut, under the authority of Hillman v. Schwenk, and under every principle of law and justice; and we know of no reason why he cannot equally and as well defend as executor in case the suit is planted against him individually, instead of being brought against another, when the issue is the same, to wit: Do the bonds belong to the estate of Philinda Hurlbut or to the estate of Ohauncey Hurlbut?
The judgment of the court below must be reversed, and a new trial granted, with costs of this Court to defendant.
Long and Grant, JJ., concurred with Morse, J.Chauncey Hurlbut died September 9, 1885, and the defendant testified that he received the bonds in question of Philinda Hurl-but, September 14, 1885, as the property of -Chauncey Hurlbut, and had always held them as belonging to his estate. The defendant and Philinda Hurlbut were named as executor and executrix in the will, and were appointed as such on the probate of the will, October 18, 1885, and gave the required bond, after which Mrs. Hurlbut took no further part in the administration of the estate.