#### McNight vs. The Estate of McNight.

*Action against*estate, *Tuno to be entitled\*— Admissions *of one under gua/rdiansldp as a spendthrift.*

1. Under our statute, on an appeal to the circuit court from an allowance or disal-lowance by tbe county court of a claim against tbe estate of M., tbe cause may properly be entitled by tbe name of tbe claimant as plaintiff and “The estate of M.” as defendant.

2. Admissions made by one under guardianship as aspendthrift, are competent evidence to prove an indebtedness contracted by him prior to such guardianship; and, *it*seems, would be competent to prove a *debtfor necessaries*contracted during tbe period of sucb guardianship.

*447APPEAL from tbe Circuit Court for *Fond du Lao*County.

*George McNight*presented to tbe county court of said county a claim against tbe estate of Tbomas McNigbt, consisting of charges for tbe board of said Tbomas and of bis son Walter, and for washing and mending clothes for them, between September, 1858, and May 1st, 1861. Tbe claim amounted to $420.00, and tbe county court allowed only $75 thereof; and from this decision tbe claimant appealed to tbe circuit court. On tbe trial there, tbe oaths administered to tbe jurors and tbe witnesses described tbe cause as one between “ *George McNight,*claimant, and *The Estate of Thomas*McNight, *deceased,*defendant.” Tbe evidence showed that said Tbomas McNigbt “ bad a guardian appointed over bis person and estate tbe last of June or fore part of July, 1861.” Tbe plaintiff was permitted, against objections made by tbe administrator of tbe estate, to introduce evidence of admissions made by tbe deceased, after tbe appointment of tbe guardian, as to bis indebtedness for the items charged in said claim. Tbe administrator appealed from tbe judgment of tbe circuit court in fevor of tbe claimant.

*Gillet & Conklin,*for appellant.

*Blair &*Coleman, for respondent

Downr, J.

Tbe counsel for tbe appellant contends that there was no legal oath administered to tbe jury or any of tbe witnesses, because tbe defendant was “Tbe estate of Tbomas McNigbt, deceased.” Grenerally it would be more regular to name tbe executor or administrator as defendant or plaintiff in such cases. But tbe statute, several times, in respect to tbe allowance of claims by commissioners against tbe deceased or bis executor or administrator, uses tbe phrase “claims against tbe estate.” And it provides for a claim in favor of an administrator or executor against tbe estate being allowed or disallowed, and an appeal by such administrator. In such case,, it would seem to be proper, if not absolutely necessary, that “Tbe estate” should be named as tbe party against whom tbe *448claim is. According to sec. 26, cb. 101, B. S., tbe judgment of tbe circuit court in this case bas only tbe same force and effect as tbe report of tbe commissioner or county judge allowing or disallowing tbe claim would bave bad, if there bad been no appeal from sucb decision. No execution can be issued on tbe judgment. Tbe object of tbe proceeding is to ascertain and fix tbe amount of such claims against tbe estate, so as to enable tbe administrator to pay them, or, if there should not be money in bis bands sufficient to pay tbe whole, to enable tbe county court properly to distribute whatever there may be. Tbe objection is not tenable.

Tbe next error assigned is, that the admissions of tbe deceased while under guardianship were improperly received as evidence. It does not appear for what be was under guardianship. It was stated on tbe argument that it was for wasting his estate by excessive drinking. Tbe statute in sucb cases provides that all contracts except for necessaries, at reasonable prices, and all gifts, sales and transfers of real or personal estate, made during tbe guardianship, shall be void. Tbe principal object of tbe guardianship is to prevent the spendthrift from reducing himself and family to paupers. It is not pretended that tbe admissions were made to avoid tbe provisions of the act. Tbe debt tbe admissions tended to prove was contracted before the guardianship, and proved by evidence other than bis admissions. We see no reason why tbe admissions were not competent. And if it bad been contracted during tbe guardianship, we are inclined to think they would bave been competent, because tbe debt appears to bave been contracted for necessaries.

Tbe last objection is, that tbe judgment is contrary to law and evidence. There was no motion for a new trial, and tbe record does not show that *all*the evidence is before us. We must therefore affirm tbe judgment of tbe circuit court.

*By the Court.*— Judgment affirmed.