delivered the opinion of the court.
This was a suit to compel a specific performance of parol agreement to convey lands. The statute of frauds was not *229pleaded. There was a judgment for the plaintiffs. The point mainly relied on for a reversal of the judgment is, that the evidence was insufficient to warrant it. We can not weigh the evidence in this court. This court was instituted to determine questions of law and not to try matters of fact. This was a case required by law to be tried by the court, and it was therefore in the discretion of the court whether or not it' would submit issues to a jury.
It is objected that the court erred in permitting Ann MeCullough, the mother and guardian, who conducted the suit in the name of the wards, to be sworn as a witness. It is said that she is a party to the suit. But is the guardian who carries on a suit in the name of his ward any more a party to the suit than the attorney who conducts a suit for an adult ? A person of age sues by attorney, a person not of age sues by guardian : why is the guardian any more a party to the suit which he prosecutes than an attorney is to that which he conducts ? But it is said that the guardian is liable for the costs of the suit if it fails. No doubt he is so, and it was that which disqualified him as a witness when the coipmon law rules of evidence prevailed; but as now by statute interest does not incapacitate a witness, a guardian is as competent a witness as an attorney. (Murphy v. Murphy, 24 Mo. 526.)
But as the plaintiffs who are prosecuting this suit are the heirs and children of the husband of the guardian with whom the contract for the conveyance of the land was made, it is maintained that if the heirs succeed in this suit, then the mother and guardian will be entitled to dower in the land recovered, and that the judgment will establish her right to it, therefore the suit is prosecuted for her immediate benefit. Although the plaintiffs succeed in this action, as another action will be necessary in order that the guardian may obtain her dower, it can scarcely be maintained that the suit, in the ordinary acceptation of the phrase, is prosecuted for her immediate benefit. The most that can be said is, that she has an interest in the judgment, as it will be evi*230deuce for her in future action. The seventh section of the act concerning witnesses provides, that if any interested witness is offered and objected to on the ground that the verdict or judgment in the action, in which it is proposed to examine him, would be admissible in evidence for or against him, such witness shall nevertheless be examined; but in that case the verdict and judgment in that action, in favor of the party in whose behalf he shall be examined, shall not be admissible in evidence for him, or any one claiming under him.”
The other judges concurring,the judgment will be affirmed.