The opinion of the court was delivered by
Peck, J.
The action is trespass and trover for various article® of *512personal property, consisting principally of household furniture and provisions which were in and about the dwelling house of Catharine Esler at the time of her decease, of whose estate the defendant was administrator.
It appeared at the trial, beyond dispute, that some of these articles were the property of the intestate at her decease, unless the plaintiff was married to the intestate, as he claimed, and thereby acquired her title. The plaintiff on trial claimed title to a portion of the property by virtue of such marriage. As to the residue of the property, the plaintiff claimed title on the ground that it never belonged to the intestate, and that he purchased it originally with his own money, and introduced evidence tending to prove such title to this latter portion of the property, and offered himself as a witness to prove a marriage between him and the defendant’s intestate. The defendant claimed, and his evidence tended to show, that the property which he took all belonged to the intestate, and, that he took it as such administrator, with the knowledge and permission of the plaintiff, and that the plaintiff never asserted any claim to any of the articles in question, to the knowledge of the defendant, till since the commencement of this suit.
■ The only exception taken by the plaintiff at the trial, was to the refusal of the court to allow the plaintiff to testify to a marriage between himself and the intestate.
It is insisted by the counsel for the defendant, as the verdict was for the defendant, that under the charge of the court as to the effect of the permission and license of the plaintiff, the verdict must have been the same if the evidence excluded had been admitted by the court and found by the jury to be true, and therefore whether the decision excluding the evidence was right or wrong, the judgment ought not to be reversed- The legal proposition is correct, that if it is apparent that the party against whom the error was committed has not been prejudiced by it, the judgment should not Be reversed for such error. But it does not so appear. It does not appear whether the jury found the license proved or not; they may have failed to find the license and may have found the verdict for the defendant, solely bn the ground of title in the intestate to the whole property taken by the defendant. If it had been conceded by the defendant that some *513of the property, for which the plaintiff sought to recover, was the property of the plaintiff, then the jury, in order to find, as they did, a verdict for the defendant, must have found the permission and license of the plaintiff proven. The defendant’s evidence tending to show that after the decease of Catharine Esler, and after the defendant’s appointment as administrator, he called on the plaintiff and requested him to select such articles as he claimed belonging to him, the plaintiff, and that the plaintiff did so and took them away, and that he, the defendant, only took the residue, tended to prove that the whole property taken by the defendant belonged to the estate of the intestate%and the jury may have so found. The license too was in dispute. The plaintiff’s evidence tended to prove that he informed the defendant when the defendant took the property, that he, the plaintiff, was married to the intestate, and that he claimed the property by virtue of the marriage. It is impossible to say but that the verdict was founded wholly on the defendant’s title. The refusal of the court, therefore, to allow the plaintiff to testify to the marriage may have changed the verdict from what it otherwise would have been. The question then is whether that testimony was properly excluded? Was Catherine Esler, the deceased, “ a party to the contract or cause of action in issue and on trial ” within the meaning of the statute? The marriage contract offered to be proved, is a contract between the plaintiff and the deceased, but the action is not brought upon that contract in the technical sense of pleading. The action in that sense is not upon contract, — ihe action is tort. It may be difficult in many cases to determine in actions of tort, what is the cause of action in issue and on trial within fhe meaning of the statute. Controversies may arise after the decease of a party as to the ownership of property, that is, whether it belonged to the deceased at his death, or to the party living who claims it, and yet no cause of action may exist upon which an action could be sustained until the surviving- party, or the representatives of the deceased, interferes with the property in such a manner as to give the other a right of action, if he can show title to it. Such is the present case. The plaintiff claims under a title that he derived, if at all, from the deceased before her death. The defendant claims title as the administrator of the deceased, adverse to the plaintiff’s alleged title, and *514upon the ground that the intestate owned the property at the time of her death, the right of action, strictly, speaking, did not exist till after the decease of the intestate, nor until the defendant took the property. In determining whether this case comes within the provisions of the statute, we should look at matters of substance rather than technical terms and forms. The alleged cause of action, in a strict technical sense, is the taking by the defendant of the property of the plaintiff. The deceased was not a party to the taking and conversion complained of, but she was the party holding the title under which the defendant, as her representative, claims, and a party to the alleged marriage contract by which the plaintiff claims to have derived his title from her in her life time. The title is the real matter in controversy. The purpose of the statute was to guard the estate of the deceased party from the apprehended danger of allowing the surviving party to testify, when the other party is disabled by death to meet and explain such testimony. The legislature have, therefore, provided in effect, that when one party to a controversy is dead and can not testify, the other shall not. The direct effect of a judgment for the plaintiff in this case is to lessen the estate of the deceased to the extent of the recovery by the plaintiff; as much so as if the action were upon a contract claimed to have been made by the plaintiff with the deceased. The form of action is tort, but the controversy is as to the plaintiff’s title, whether he acquired title from the intestate in her lifetime. The plaintiff seeks to show this by testifying to a contract of marriage with the deceased. If the plaintiff claimed title by purchase from the intestate, I think it clear that he could not prove such purchase by his own testimony. The contract of marriage, to which the plaintiff offered to testify, is a contract with the deceased, and the same in its legal effect, upon the title in dispute, as a contract of purchase from her. The controversy in this case is a cause of action to which the deceased may fairly be said to be a party, within the meaning of the statute; if not, the statute would seem to fail to accomplish its purpose. The subsequent provision in the statute, that when an executor or administrator is a party the other party shall not be admitted to testify in his favor, seems to have the same purpose in view, and, in the opinion of the court, embraces this case. It is true the defendant is not named in *515the writ as administrator, but he is in fact such, and in taking the property he acted in that capacity and in behalf of the estate of the deceased, and justifies on trial upon that ground. If the •plaintiff at the time the defendant took the property had refused to deliver it, and driven the defendant in this suit to commence an action of trover or replevin against him for the property, he might have declared as administrator, and the controversy as to title would have been the same as in this case. If such case would have come within the statute, this ought to be so regarded. The right of the. plaintiff in this suit to testify ought not to be made to depend on the accidental circumstance of the one party, or the other, being plaintiff in the suit, When the matter in issue and the parties are the same, and the effect of the judgment the same upon the estate of the deceased. *
Judgment affirmed.