TorkANCE, J.
In the case at bar the present appellant, Irene M. Buckingham, took an appeal to the Superior Court from a decree of the court of probate for the district of Milford accepting and approving the final administration account of the executor upon the estate of one Irene Clark, deceased. The appellant was ohe of the residuary legatees of the personal property under the will. The reasons assigned for taking the appeal were three in number, namely:—
First.
Because the executor had not charged himself with all the assets and property belonging to the estate that came into his hands.
Second.
Because the court allowed the executor’s account “ in gross and without proper itemizing and explanation.”
Third.
Because the court allowed amounts for personal services and expenses to the executor, which were alleged to be “ excessive, unnecessary, unjust and illegal.”
Upon the trial in the Superior Court the principal point in dispute between the parties related to the matter referred to in the first assigned reason of appeal. The decision of this point turned upon the question whether Mrs. Irene Clark, in her lifetime, had or had not made to three of her nieces a valid gift of certain moneys in bank, amounting in the whole to forty-five hundred dollars. If such gifts were valid, then the money in question did not belong to the estate, and ought not to have been inventoried as part thereof. If they were not valid gifts, then, of course, the money formed a part of the estate and should have been so returned.
The Superior Court found all the facts and circumstances under which the claimed gifts of fifteen hundred dollars to each of three nieces were made ; that in what Mrs. Clark so did with reference to the making of the gifts, she intended
to make a valid gift of that sum to each of the nieces, to take effect at that time; and that the nieces then accepted the gifts.
The facts and circumstances aforesaid are particularly found and stated upon the record, but for the purposes of this decision it is unnecessary to state them at greater length here.
We are satisfied that the conclusion of the court below, upon the facts as found, that these gifts of money to the nieces were valid gifts, was right, whether regarded as a conclusion of fact or as one of law. But in the trial of the case we think the court erred in admitting certain evidence against the objection of the appellant. We do not here refer to the admission of the letter written by the appellant to the deceased, for we think that was, under the circumstances, properly admitted, and indeed this point was not pressed before us on the argument. We refer to the admission of the opinion of the judge in the case from the Circuit Court of the United States for the district of Connecticut, to which reference is hereinafter made.
It appears from the record in the case at bar, that in 1887, oue Martha A. Miller of Iowa, a daughter of the appellant, and one of the residuary legatees of the personal property under the will of Mrs. Clark, brought a bill in equity, in the above named court, against the executor of Mrs. Clark’s will and the three nieces to whom the gifts were made by Mrs. Clark in her lifetime, asking that the nieces be compelled to turn over to the executor the money so given, and the bank books which had been taken therefor in the names of the nieces, and that the executor be ordered to receive and account for the money as such executor. The court upon the facts dismissed the bill. Upon the trial of this present case in the court below, the executor of Mrs. Clark, who is the sole appellee in the case at bar, offered in evidence a certified copy of the record of the case aforesaid, in the United States Circuit Court, together with a like copy of the opinion filed in the cause by the judge who tried it, and the printed proofs taken before an examiner in the
cause. The appellant objected to the whole of this evidence, as among other things “irrelevant and
res inter alios
acta,” and also to the copies, “ as not showing on what proof the decree was based.” She also objected to the opinion of the judge “ as being no part of tbe record and mere hearsay, and irrelevant and incompetent to explain the grounds ol the decree.” The court overruled each and all of these objections, admitted the evidence, and held that the opinion of the judge might be read and used to show the grounds of the decree.
If tbe present appellant was a party or privy to the suit in the United States Court, then of course the legal record in that suit would have been admissible against her upon any matter which had been there litigated and determined between herself and the present appellee.
She was clearly not a party of record in that suit, but the appellee claims that she was, within the meaning of the law, an actual party thereto, and in privity with himself, as executor of the estate which he, in that suit, represented. In regard to the actual connection of the present appellant with the suit in the United States Court, the record is as follows : — “ The said Martha Miller is one of the devisees under said will, (that is, of Mrs. Clark), and the daughter of the appellant,' and said, action was brought at the request of the appellant and for her benefit, and the appellant’s attorneys, Mr. McMahon and Mr. Buckingham, appeared and had the exclusive charge of said case during the preparation and trial thereof, except that the bill in the case was originally drafted by Mrs. Miller’s counsel in Iowa. This bill was sent to the appellant’s attorney, Mr. McMahon, who made such changes in it as he deemed best, and had the action commenced. Mr. Baldwin, the appellant’s attorney in this appeal from probate, was not concerned in the Miller case. Mr. McMahon advised with the appellant touching this Miller case.”
It thus appears from the record that the present appellant, for her own benefit as a legatee under the will of Mrs. Clark, caused a suit to be brought in the United States
Court in the name of ber daughter, another legatee under the will, against the executor of Mrs. Clark’s estate and those to whom the gifts aforesaid had been made, to determine whether the money claimed under the gifts was or was not the money of the estate, for which the executor should account. This suit was commenced by her attorneys, it was prosecuted by them to a final conclusion, and they had the exclusive charge of it during the preparation and trial thereof, with the exception of the original draft of the bill. To that suit the estate of Mrs. Clark, through the executor thereof, was a party. So far as legatees and distrib-utees of the personal property were concerned, the executor represented them and their interest in the estate in this proceeding.
“ The rule of law is well established that the legal title to all personal property of the deceased vests in his legal representatives. They can dispose of it at pleasure, being responsible for the faithful execution of the trust.”
Beecher
v.
Buckingham,
18 Conn.,
110; Johnson
v.
Connecticut Bank,
21 id., 156.
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TorkANCE, J.
In the case at bar the present appellant, Irene M. Buckingham, took an appeal to the Superior Court from a decree of the court of probate for the district of Milford accepting and approving the final administration account of the executor upon the estate of one Irene Clark, deceased. The appellant was ohe of the residuary legatees of the personal property under the will. The reasons assigned for taking the appeal were three in number, namely:—
First.
Because the executor had not charged himself with all the assets and property belonging to the estate that came into his hands.
Second.
Because the court allowed the executor’s account “ in gross and without proper itemizing and explanation.”
Third.
Because the court allowed amounts for personal services and expenses to the executor, which were alleged to be “ excessive, unnecessary, unjust and illegal.”
Upon the trial in the Superior Court the principal point in dispute between the parties related to the matter referred to in the first assigned reason of appeal. The decision of this point turned upon the question whether Mrs. Irene Clark, in her lifetime, had or had not made to three of her nieces a valid gift of certain moneys in bank, amounting in the whole to forty-five hundred dollars. If such gifts were valid, then the money in question did not belong to the estate, and ought not to have been inventoried as part thereof. If they were not valid gifts, then, of course, the money formed a part of the estate and should have been so returned.
The Superior Court found all the facts and circumstances under which the claimed gifts of fifteen hundred dollars to each of three nieces were made ; that in what Mrs. Clark so did with reference to the making of the gifts, she intended
to make a valid gift of that sum to each of the nieces, to take effect at that time; and that the nieces then accepted the gifts.
The facts and circumstances aforesaid are particularly found and stated upon the record, but for the purposes of this decision it is unnecessary to state them at greater length here.
We are satisfied that the conclusion of the court below, upon the facts as found, that these gifts of money to the nieces were valid gifts, was right, whether regarded as a conclusion of fact or as one of law. But in the trial of the case we think the court erred in admitting certain evidence against the objection of the appellant. We do not here refer to the admission of the letter written by the appellant to the deceased, for we think that was, under the circumstances, properly admitted, and indeed this point was not pressed before us on the argument. We refer to the admission of the opinion of the judge in the case from the Circuit Court of the United States for the district of Connecticut, to which reference is hereinafter made.
It appears from the record in the case at bar, that in 1887, oue Martha A. Miller of Iowa, a daughter of the appellant, and one of the residuary legatees of the personal property under the will of Mrs. Clark, brought a bill in equity, in the above named court, against the executor of Mrs. Clark’s will and the three nieces to whom the gifts were made by Mrs. Clark in her lifetime, asking that the nieces be compelled to turn over to the executor the money so given, and the bank books which had been taken therefor in the names of the nieces, and that the executor be ordered to receive and account for the money as such executor. The court upon the facts dismissed the bill. Upon the trial of this present case in the court below, the executor of Mrs. Clark, who is the sole appellee in the case at bar, offered in evidence a certified copy of the record of the case aforesaid, in the United States Circuit Court, together with a like copy of the opinion filed in the cause by the judge who tried it, and the printed proofs taken before an examiner in the
cause. The appellant objected to the whole of this evidence, as among other things “irrelevant and
res inter alios
acta,” and also to the copies, “ as not showing on what proof the decree was based.” She also objected to the opinion of the judge “ as being no part of tbe record and mere hearsay, and irrelevant and incompetent to explain the grounds ol the decree.” The court overruled each and all of these objections, admitted the evidence, and held that the opinion of the judge might be read and used to show the grounds of the decree.
If tbe present appellant was a party or privy to the suit in the United States Court, then of course the legal record in that suit would have been admissible against her upon any matter which had been there litigated and determined between herself and the present appellee.
She was clearly not a party of record in that suit, but the appellee claims that she was, within the meaning of the law, an actual party thereto, and in privity with himself, as executor of the estate which he, in that suit, represented. In regard to the actual connection of the present appellant with the suit in the United States Court, the record is as follows : — “ The said Martha Miller is one of the devisees under said will, (that is, of Mrs. Clark), and the daughter of the appellant,' and said, action was brought at the request of the appellant and for her benefit, and the appellant’s attorneys, Mr. McMahon and Mr. Buckingham, appeared and had the exclusive charge of said case during the preparation and trial thereof, except that the bill in the case was originally drafted by Mrs. Miller’s counsel in Iowa. This bill was sent to the appellant’s attorney, Mr. McMahon, who made such changes in it as he deemed best, and had the action commenced. Mr. Baldwin, the appellant’s attorney in this appeal from probate, was not concerned in the Miller case. Mr. McMahon advised with the appellant touching this Miller case.”
It thus appears from the record that the present appellant, for her own benefit as a legatee under the will of Mrs. Clark, caused a suit to be brought in the United States
Court in the name of ber daughter, another legatee under the will, against the executor of Mrs. Clark’s estate and those to whom the gifts aforesaid had been made, to determine whether the money claimed under the gifts was or was not the money of the estate, for which the executor should account. This suit was commenced by her attorneys, it was prosecuted by them to a final conclusion, and they had the exclusive charge of it during the preparation and trial thereof, with the exception of the original draft of the bill. To that suit the estate of Mrs. Clark, through the executor thereof, was a party. So far as legatees and distrib-utees of the personal property were concerned, the executor represented them and their interest in the estate in this proceeding.
“ The rule of law is well established that the legal title to all personal property of the deceased vests in his legal representatives. They can dispose of it at pleasure, being responsible for the faithful execution of the trust.”
Beecher
v.
Buckingham,
18 Conn.,
110; Johnson
v.
Connecticut Bank,
21 id., 156. The ...........................personal representative holds such property as a trustee of all parties interested therein. Schouler on Exrs. & Admrs., § 289.
Assuming that the United States Court had jurisdiction of the parties and the subject matter, we think, if the decree in that suit had determined that the gifts in question were invalid, and that the money so given belonged to the estate, such a decree would have been admissible in evidence iii the present case in favor of the appellant and against the ap-pellee. If this be so, we see no good reason why it is not admissible in evidence against the appellant and in favor of the estate upon this same point, more especially in view of the fact that the appellant was the party who actually brought and conducted the suit.
The following authorities support this conclusion.
Crandall
v.
Gallup,
12 Conn., 365;
Gould
v.
Stanton,
16 id., 21;
Teague
v.
Corbitt,
57 Ala., 529;
Scott
v.
Ware,
64 id., 174;
Stone
v.
Wood,
16 Ill.,
177; Castellaw
v.
Guilmartin,
54 Geo., 299;
Steele
v.
Lineberger,
59 Penn. St., 308.
Whether, when so admitted, such decree would be conclusive or not, we have no occasion at present to determine.
In admitting the record itself therefore, under the circumstances disclosed by the finding, we do not think the court below erred. But the court also admitted in evidence the written opinion of the judge who tried the case in the United States Court. This was no part of the record. It was admitted for the purpose of showing the grounds of the decree. The decree itself did not show on what facts it was based.
After the record was admitted, the question then was whether the validity of the gifts to the nieces, which was in issue in the case at bar, had been in issue and had been determined in the prior suit. In such a case, if the record does not clearly disclose the facts upon which the judgment or decree is based, they may be shown by any proper evidence outside of the record.
Supples
v. Gannon, 44 Conn., 424;
Mosman
v. Sanford, 52 Conn., 28. But the witnesses who give such evidence must give it in the ordinary way, and under the conditions imposed upon all witnesses. It must be given under oath and subject to the right of cross-examination, and it must not be what is termed “ hearsay ” evidence.
By the admission of the opinion aforesaid, as evidence to show the grounds of the decree, these fundamental rules of evidence were violated, and the court committed an error. But the appellee claims that, if the court did so err, the decision at which the court arrived upon the merits of the case, was not affected by the admission of the aforesaid testimony. This may be true, but we cannot be certain of it. The conclusions of the court below were drawn after the reception of the entire testimony, and we cannot profitably speculate as to the degree of influence which the objectionable testimony had in the final result. In such a case, unless it clearly appears that no harm could have been done, perhaps the safer rule is to grant a new trial.
Jacques
v.
Bridgeport Horse JR. JR. Co.,
41 Conn., 66;
Richmond
v. Stable, 48 id., 22.
We regret the necessity tbat compels us to grant a new trial in a case like the one at bar, where the real questions at issue have been so fully tried before two able and impartial judges, but we see no way of avoiding such a result in the present case.
For the reasons herein given the judgment of the court below is reversed and a new trial is granted.
In this opinion the other judges concurred.