#### Daniel Eveleth, Executor, Appellant, *versus*Jonathan Crouch and Elizabeth his Wife.

Tile common-law rules of evidence, as well as of property, are equally binding on this Court, when sitting as a court of probate, as when sitting as a court of common law; except where a difference is made by statute.

This was an appeal from a decree of the judge of probate for this county, disallowing the second account of the appellant, of his administration of the estate of *Martha Skinner,*deceased, whose *280executor he is. The account consisted, besides one principal charge hereafter mentioned, of a number of charges, in support of which no evidence was offered to the judge below, nor to this Court upon the appeal.

The principal charge was of 1000 dollars, as damages for a breach of covenant by the testatrix, in that she had, by two deeds bearing dale respectively the 29th of January, 1791, and the 2d of July, 1796, conveyed to the appellant a certain farm formerly bélonging to her late husband, *Joseph Skinner,*and covenanted that she was lawfully seised of the same, that she had good right to sell and convey, and that the premises were free of all encumbrances ; — whereas the appellant has been since evicted by force of a paramount title.

The defence set up against this charge, and proved, was, that the title of the testatrix to the farm which she so conveyed to the appellant was derived from him, by deed or * deeds made antecedent to the execution of her deeds to him ; and that, by those deeds, the appellant entered into covenants of a like import with those relied upon by him in support of his claim ; and further, that the title under which he was evicted was paramount to the title existing in him before his conveyance to the testatrix.

*Bigelow*and *Hosmer,*of counsel for' the appellant,

moved for leave to prove certain facts which, they contended, would give him an equitable right to recover in the form in which his claim was presented in this case, although he might not be able to avail himself of the same facts in an action at common law upon the covenants of the testatrix. The facts upon which they relied were that, when he first purchased the estate, which was sold under a license from the Court of Common Pleas, (vide 12 *Mass. Rep.*503,) he acted merely as the agent of the testatrix, for whose use the purchase was made; that the consideration was in truth paid by her, and that he made his conveyance to her, in pursuance of his under taking, for her benefit, and without having received any considera tian from her or any other person.

*Hoar,*for the respondents,

objected to the admission of the evi dence offered, and contended that the appellant’s deeds estopped him from showing that no consideration was received by him.

*Bigelow*insisted that this Court, sitting as a court of probate, was not bound by the common-law doctrine of estoppels. In a court of chancery, this whole transaction would be thoroughly examined, and justice done to the parties — much more should this be done by a tribunal originally ecclesiastical, and which is not trammelled by the technical rules of the common law.

*Lawrence,*in reply. The Court of Probate derives its jurisdiction *281from statutes which take away no common-law rights; and it is governed, in all its proceedings, by the common law, in its rules of evidence. This claim of the appellant would have been before this Court at * common law, but for the accidental circumstance of his having been appointed executor; and it is merely upon this circumstance that he claims an exemption from standing roles by which all others are bound. But he has neither at law nor in equity any rights beyond every other citizen. It is not contended that, in an action at law, either by himself against another, as the representative of the testatrix, upon the covenants in her deeds, or in an action by such representative upon those contained in his deed to the testatrix, he would be permitted to go into this evidence.

Parker, C. J.

There is, unquestionably, a seeming hardship in considering the appellant as a grantor and covenantor, in his deeds to the person for whom he was transacting the business merely as an agent. But hé placed himself in a situation where he must suffer, unless he can be relieved consistently with the rules of law. To admit the evidence offered by him, would be to permit him directly to contradict his deed. In that he declares himself to be the owner of the land, and to have lawful right to convey it; and his express and unequivocal covenants would be defeated by verbal declarations — contrary to the intent of our statutes, and the principles of the common law, which alike prohibit the provisions of solemn instruments to be impaired or defeated by paroi testimony.

Nor have we more enlarged jurisdiction for the application of principles of equity, when exercising appellate authority as a court of probate, than we should have as a court of common law; for the rules of evidence, as well as of property, bind us equally in either capacity, except where, by statute, a difference is made; and we know of no statute provision applicable to this case.

If the appellant suffers, it is because he was incautious in the mode of conducting his business. To give him relief in the form proposed, would be opening a door to all the mischiefs which the wisdom of the common law, and the discretion of our own legislature, have thought it necessary to close, although, by so doing, some meritorious claims may be shut out. (a)

*Decree affirmed*

(a)

*Baker*vs. Dewey, 1 *B. & C.*704. — *Rowntree*vs. *Jacob,*2 *Taunt.*141.— *Gris wold*vs. *Messinger,*6 *Pick.*517. — *Emery*vs. *Chase,*5 *Gr.*232. — Sed vide *Wilkinson*vs. *Scott,*17 *Mass. Rep*249. — *Bowen*vs. *Bell,*20 *Johns.*338.