dissent">Paterson, J.,

dissenting.—I dissent. It is true that Louisa M. Chalmers was not, technically speaking, a party defendant in the action, but she voluntarily set up her individual rights in the property, and caused the same to be litigated. Her homestead right was set forth in detail. It was treated as an issue in the case. The trial proceeded upon the theory, by all the parties, that her individual rights were in controversy, and the findings of the court upon that matter were as full as the allegations of the answer. Her individual right was not necessarily or even properly in the answer as a part of the defense made by the defendants in their representative capacities. The estate could not in any way be benefited by the determination of the homestead rights of Mrs. Chalmers; on the contrary, if her homestead right had been established (the court found that plaintiff's mortgage was a lien upon the property described in said declaration of homestead) the estate would have lost a fund which otherwise would have been devoted to a payment of the debts. She therefore, in effect and in fact, became a party to the suit in her individual capacity; her rights were determined, and I think she was bound by the decree rendered in the case. If the name Louisa M. Chalmers had been ’ repeated in the title of the cause without the addition of the official designation “ executrix,” there can be no doubt that judgment would be binding upon her. “A nominal .but not substantial difference in parties does not effect the estoppel. The general rule that a judgment of a court having jurisdiction of the subject-matter and the parties and the process, and rendered directly upon the point in question, is conclusive between the same parties, is not complied

*337with when the same person, though a party in both suits, is such in different capacities,—in the one individually, in the other as administrator, go if an action is brought by A as guardian of B, a minor, a judgment against A as guardian is in his official capacity, and will not preclude him from maintaining a subsequent action in his own right individually, and vice versa. For in the prior action, A, properly speaking, had not been a party. The real party in interest was the minor by A, his guardian. The subsequent action in A’s own name is not, then, between the same parties; the person may be the same, but in different capacities, and the former action cannot preclude him from maintaining the subsequent action; but where they litigate their individual rights in the same action, the judgment is conclusive. Thus where an executrix, who was also the widow of the testator, being sued in the former capacity only, but raising in her defense of the suit the issue of her rights as usufructuary,, will be personally concluded by the judgment, and cannot subsequently attach its validity on the ground that she was not cited in her individual capacity(1 Herman on Estoppel, sec. 94.)

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