Carpenter, J.
This is a suit in chancery to set aside the transfer of two mortgages from complainant’s testator to the first-named defendant. There is also a claim, .which will be discussed at the conclusion of this opinion, that complainant, in her individual capacity, is entitled to an equitable lien on certain real estate. The original bill was filed by complainant, the widow of said Levi R. Peirson, deceased, in her individual capacity. It sought relief on the ground that the moneys invested in the mortgages belonged to her. Afterwards the will of said Levi R. Peirson, whereby he devised to complainant all his property and appointed her executrix, was admitted to probate. Thereupon her bill was amended, and a decree sought on the ground that these mortgages still belong to the testator’s estate. The trial court dismissed complainant’s bill. She appeals to this court, and asks a decree “so that these two mortgages should stand in the name of the estate; then, by operation of the will, they would, after the settlement of the estate, come to Mrs. Peirson.”
Complainant contends that she is entitled to this decree on one of two grounds: First, that the assignments were never delivered; second, that, if they were delivered, no consideration was paid for them, that they equitably belong to complainant, and that they should be decreed to belong to the estate in order that complainant’s equitable right to them may be enforced. We will discuss these claims separately.
First. Were the assignments ever delivered f One of these assignments was dated September 5, 1898, and the other December 14, 1898. Mr. Peirson died in a hospital [160]*160in Columbus, Ohio, January 13, 1899. He had gone to that hospital, accompanied by Miss McNeal, December 19, 1898, The papers were not placed on record until January 16, 1899, three days after Mr. Peirson died. Complainant contends that these assignments were never delivered,-and were in Mr. Peirson’s possession at the timo he died. The trial judge, who heard the witnesses, found against this contention; and in my judgment the evidence that these assignments were delivered just before the deceased and Miss McNeal went to Columbus is convincing. Without considering the testimony of Miss McNeal, which I think is inadmissible under the statute (section 10212, 3 Comp. Laws), we have the testimony of her mother and sister that they saw the papers — not merely the envelop© containing them — in her custody in December, 1898. We have the testimony of her cousin, Seth McNeal, an attorney, that Mr. Peirson told him on the 15th of December, 1898, that he had given Myrtie about $7,000 (the aggregate of the mortgages and other property was just about $7,000). We have the testimony of Albert Price that on the 16th of December, 1898, Mr. Peirson told him that he had assigned these two mortgages to Myrtie. It is true that this witness says:
“The impression I got from what he said to me was that he had made these papers — these assignments — and fixed his property over with the intention of it taking effect at his death.”
Notwithstanding this statement, I think Mr. Peirson— who was a lawyer, and knew the meaning of the words he used — correctly stated the facts when he told the witness, as the witness testifies, “he had made a disposition of his property; that he had assigned the mortgages to Myrtie.” It is conclusively established that Mr. Peirson intended that after his death these mortgages should belong to Miss McNeal. He did not intend to transfer them by a will or any instrument to take effect after his death. He intended to transfer them directly to her by delivery. He was a lawyer, and presumably he knew that, to effect[161]*161uate his intent, this delivery should be made while he was living. Nor can it be urged that his sudden death prevented his carrying out his intention. Before he left for Columbus, he apprehended death. It was because of that apprehension that he desired witness Price to understand what he had done. It is difficult to believe that under such circumstances he omitted to make a delivery of these papers. The testimony above referred to is therefore in entire harmony with the probabilities.
I do not think that the charge should be made that the testimony of the mother and sister of Miss McNeal was introduced out of place. Of course, it was introduced, as it should have been, after complainant had closed her testimony in chief. I do not understand from the record that it was introduced after complainant had closed her rebutting testimony. The notion that it was so introduced I think results from the fact that complainant swore some witnesses, who testified to value, just before the testimony under consideration was introduced, and before defendants had rested. We are asked to discredit this testimony because the papers were not recorded until January 16th, because Mr. Peirson was in .control of the subject of the first assignment on the 12th of November, and because one witness — Mr. Ransom J. Eaton — testifies to two conversations with Miss McNeal in which she admitted to him that the mortgages were never delivered. The fact that these assignments, delivered just before and in anticipation of Mr. Peirson’s death, were not placed on record until after his death — an event which occurred in less than a month after the papers were delivered — is to my mind a circumstance of no particular significance. The fact that Mr. Peirson claimed to be in possession of one of these mortgages on the 12th of November is entirely consistent with the evidence that he parted with his interest in that mortgage by delivering, in December, an assignment' executed in September. Miss McNeal denies under oath that she made the admission to Mr. Eaton, and in this she is corroborated in part by the testimony of her [162]*162cousin, Mr. Seth D. McNeal. We are not compelled to choose between the alternative (a) of believing Mr. Eaton, or (6) of declaring that he has committed perjury. It is, to my mind, altogether more probable that he is mistaken in his recollection of what Miss McNeal said than it is that the other witnesses were mistaken, and that the trial judge was mistaken in crediting their testimony.
Second. Nor do I think that complainant can prevail on the ground that these mortgages are equitably hers. The only testimony in the case which justifies the conclusion that these mortgages equitably belong to complainant is her own testimony. In giving that testimony complainant testified to matters clearly within the knowledge ’ of her testator. On the theory that this property is equitably hers, complainant is seeking a decree, not for the benefit of the estate, but for her own benefit. She attacks the transaction between her testator anid Miss McNeal, not on the ground that the testator’s estate is damaged, but solely on the ground that her interest in the estate is damaged. It is clear, therefore, that if complainant can recover on the ground that she is the equitable owner of the property, and that her equities entitle the estate to recover what otherwise it could not recover, she is the real party in interest. See Bachelder v. Brown, 47 Mich. 366 (11 N. W. 200). Complainant is, in the language of the statute (section 10212, 3 Comp. Laws), “the opposite party” to Miss McNeal, who is (see Ripley v. Seligman, 88 Mich., at page 189 [50 N. W. 143]) an assignee of the deceased. Complainant’s testimony is therefore inadmissible under said section. See Bachelder v. Brown, supra.
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Carpenter, J.
This is a suit in chancery to set aside the transfer of two mortgages from complainant’s testator to the first-named defendant. There is also a claim, .which will be discussed at the conclusion of this opinion, that complainant, in her individual capacity, is entitled to an equitable lien on certain real estate. The original bill was filed by complainant, the widow of said Levi R. Peirson, deceased, in her individual capacity. It sought relief on the ground that the moneys invested in the mortgages belonged to her. Afterwards the will of said Levi R. Peirson, whereby he devised to complainant all his property and appointed her executrix, was admitted to probate. Thereupon her bill was amended, and a decree sought on the ground that these mortgages still belong to the testator’s estate. The trial court dismissed complainant’s bill. She appeals to this court, and asks a decree “so that these two mortgages should stand in the name of the estate; then, by operation of the will, they would, after the settlement of the estate, come to Mrs. Peirson.”
Complainant contends that she is entitled to this decree on one of two grounds: First, that the assignments were never delivered; second, that, if they were delivered, no consideration was paid for them, that they equitably belong to complainant, and that they should be decreed to belong to the estate in order that complainant’s equitable right to them may be enforced. We will discuss these claims separately.
First. Were the assignments ever delivered f One of these assignments was dated September 5, 1898, and the other December 14, 1898. Mr. Peirson died in a hospital [160]*160in Columbus, Ohio, January 13, 1899. He had gone to that hospital, accompanied by Miss McNeal, December 19, 1898, The papers were not placed on record until January 16, 1899, three days after Mr. Peirson died. Complainant contends that these assignments were never delivered,-and were in Mr. Peirson’s possession at the timo he died. The trial judge, who heard the witnesses, found against this contention; and in my judgment the evidence that these assignments were delivered just before the deceased and Miss McNeal went to Columbus is convincing. Without considering the testimony of Miss McNeal, which I think is inadmissible under the statute (section 10212, 3 Comp. Laws), we have the testimony of her mother and sister that they saw the papers — not merely the envelop© containing them — in her custody in December, 1898. We have the testimony of her cousin, Seth McNeal, an attorney, that Mr. Peirson told him on the 15th of December, 1898, that he had given Myrtie about $7,000 (the aggregate of the mortgages and other property was just about $7,000). We have the testimony of Albert Price that on the 16th of December, 1898, Mr. Peirson told him that he had assigned these two mortgages to Myrtie. It is true that this witness says:
“The impression I got from what he said to me was that he had made these papers — these assignments — and fixed his property over with the intention of it taking effect at his death.”
Notwithstanding this statement, I think Mr. Peirson— who was a lawyer, and knew the meaning of the words he used — correctly stated the facts when he told the witness, as the witness testifies, “he had made a disposition of his property; that he had assigned the mortgages to Myrtie.” It is conclusively established that Mr. Peirson intended that after his death these mortgages should belong to Miss McNeal. He did not intend to transfer them by a will or any instrument to take effect after his death. He intended to transfer them directly to her by delivery. He was a lawyer, and presumably he knew that, to effect[161]*161uate his intent, this delivery should be made while he was living. Nor can it be urged that his sudden death prevented his carrying out his intention. Before he left for Columbus, he apprehended death. It was because of that apprehension that he desired witness Price to understand what he had done. It is difficult to believe that under such circumstances he omitted to make a delivery of these papers. The testimony above referred to is therefore in entire harmony with the probabilities.
I do not think that the charge should be made that the testimony of the mother and sister of Miss McNeal was introduced out of place. Of course, it was introduced, as it should have been, after complainant had closed her testimony in chief. I do not understand from the record that it was introduced after complainant had closed her rebutting testimony. The notion that it was so introduced I think results from the fact that complainant swore some witnesses, who testified to value, just before the testimony under consideration was introduced, and before defendants had rested. We are asked to discredit this testimony because the papers were not recorded until January 16th, because Mr. Peirson was in .control of the subject of the first assignment on the 12th of November, and because one witness — Mr. Ransom J. Eaton — testifies to two conversations with Miss McNeal in which she admitted to him that the mortgages were never delivered. The fact that these assignments, delivered just before and in anticipation of Mr. Peirson’s death, were not placed on record until after his death — an event which occurred in less than a month after the papers were delivered — is to my mind a circumstance of no particular significance. The fact that Mr. Peirson claimed to be in possession of one of these mortgages on the 12th of November is entirely consistent with the evidence that he parted with his interest in that mortgage by delivering, in December, an assignment' executed in September. Miss McNeal denies under oath that she made the admission to Mr. Eaton, and in this she is corroborated in part by the testimony of her [162]*162cousin, Mr. Seth D. McNeal. We are not compelled to choose between the alternative (a) of believing Mr. Eaton, or (6) of declaring that he has committed perjury. It is, to my mind, altogether more probable that he is mistaken in his recollection of what Miss McNeal said than it is that the other witnesses were mistaken, and that the trial judge was mistaken in crediting their testimony.
Second. Nor do I think that complainant can prevail on the ground that these mortgages are equitably hers. The only testimony in the case which justifies the conclusion that these mortgages equitably belong to complainant is her own testimony. In giving that testimony complainant testified to matters clearly within the knowledge ’ of her testator. On the theory that this property is equitably hers, complainant is seeking a decree, not for the benefit of the estate, but for her own benefit. She attacks the transaction between her testator anid Miss McNeal, not on the ground that the testator’s estate is damaged, but solely on the ground that her interest in the estate is damaged. It is clear, therefore, that if complainant can recover on the ground that she is the equitable owner of the property, and that her equities entitle the estate to recover what otherwise it could not recover, she is the real party in interest. See Bachelder v. Brown, 47 Mich. 366 (11 N. W. 200). Complainant is, in the language of the statute (section 10212, 3 Comp. Laws), “the opposite party” to Miss McNeal, who is (see Ripley v. Seligman, 88 Mich., at page 189 [50 N. W. 143]) an assignee of the deceased. Complainant’s testimony is therefore inadmissible under said section. See Bachelder v. Brown, supra.
I do not understand that complainant asks relief upon the ground that she has established her charge in the bill that these assignments were procured by undue influence. To avoid any misapprehension, we deem it proper to say that, in our judgment, that charge is not established.
We now come to the consideration of the claim referred to at the commencement of this opinion — that complain[163]*163ant, in her individual capacity, is entitled to a lien on certain real estate. In 1896, complainant’s• husband, Mr. Peirson, purchased a house and lot for Miss McNeal. The title was taken in her name, and she has had the use of the property since that time. It is claimed that all, or at least a portion, of the purchase money belonged to complainant, and for that reason an equitable lien should be declared in her favor. We regard this suit — and in so doing we construe the amended bill as claimed by complainant — as a suit brought by her as executrix of her husband’s estate. As such executrix she can obtain relief only for the ■ estate’s grievances. She has no right to litigate in such a suit a matter like that now under consideration, in which the estate has no interest. If the claim is well grounded — which we neither affirm nor deny — it should be the subject of a suit brought by her in her individual capacity.
We are not called upon to determine the propriety of the relations which existed between Mr. Peirson and Miss McNeal, for it is clear that the impropriety of those relations, if they were improper, would not, as a matter of law, defeat the latter’s title to the mortgages in question.
In my judgment, the decree of the circuit court should be affirmed, with costs.
Moore, C. J., Montgomery and Hooker, JJ., concurred with Carpenter, J.