Opinion by

The legal plaintiff to the action is absolutely without interest in the result, even to the extent of costs, for as against these he has been indemnified. He sues as executor, on a bond given him as executor, and which by its terms authorized him to apply in payment thereof whatever was required out of the distributive share of one of the makers in the estate he represented. This he has done, and has been released by such distributee from all liability and accountability therefor. It is of no possible consequence that under the terms of the bond he was not obliged to adopt this method of securing payment, but had the alternative remedy of an action on the bond. The important thing is that he did adopt the former rather than the latter, and the bond has been in fact paid. No use plaintiff has been brought upon the record, but the evidence discloses that the substantial plaintiff claiming to recover on the ground of equitable interest, is Mrs. Alice S. Koehler, herself one of the two defendants in the action, the other being her husband, Frederick M. Koehler, against whom recovery is sought. Her claim is that the bond sued on was given for the debt of her husband, Frederick M. Koehler; that she was simply surety thereon; that the debt has been paid by her, and that therefore she is in equity entitled to recover over. What is this but an action at law by the wife against the husband? It is too plain to be disguised by any refinement of statement as to the nature of the claim, that this is what the proceeding means. The result of the action concerns only the wife, and can *17involve no one but the husband. The agreement between her and the executor that the action should be maintained in the latter’s name as legal plaintiff, as a device to circumvent the law which prohibits a wife from suing her husband, lacks even the merit of ingenuity. The right to sue the obligor in an action by a surety to recover over against the principal obligor does not depend upon agreement with the obligee. If the purpose in making the agreement in this case was to avoid bringing the use plaintiff upon the record or to the light, and thereby conceal the true nature of the action, — and we can conceive of no other — failure might readily have been foreseen. An admission by the legal plaintiff that he was without interest, would have made it indispensable to the further maintenance of the action that a subsequent use plaintiff should appear.

The assignments of error are overruled, and the judgment is affirmed.