Walker v. Beal et als.

Here the property was transferred to trustees in trust, to pay the income to the cestui que trust, upon condition that she should relinquish her claims of dower to purchasers of such portions of his real estate as he should sell during coverture; and if she survived him, that she should release her right of dower in all the remainder of his real estate. Such a trust, it is insisted by the respondents, cannot be upheld in a court of equity, but the court is not able to concur in that proposition. The views of the respondents appear to be, that the indenture, even if considered as divested of the clause which provides that it shall not be rendered invalid, should the parties thereafter cohabit and live together, is nevertheless void, as contrary to public policy. Objections of that sort have frequently been urged, but they have as often been overruled as they have been presented for consideration. Regrets have been expressed by judges that the rule had not been settled otherwise; but as often as the question has been presented in the later cases, another decision has been added to the list confirming it, until it may be said that it is universally established. Compton v. Collinson, 2 Brown C. C. 377; Worrall v. Jacob, 3 Mer. 266; Jee v. Thurlow, 2 B. & Cr. 546; Webster v. Webster, 23 L. & Eq. 216; Wilson v. Marhat, 3 B. & Ad. 743; Rundle v. Gould, 8 El. & Bl. 457; Babcock v. Smith, 22 Pick. 61; Hunt v. Hunt, 5 Law Times, 778.

Special objection is made to the provision of the indenture, that it shall not be invalid in case the parties should hereafter elect to cohabit and live together, as withdrawing all motive from the husband for a reconciliation and return of his wife. Doubt cannot be entertained as to the intention of the parties. Where the instrument contains no such clause, it might well be argued that it was not the intention of the parties that it should continue in force in case of subsequent cohabitation, but every such suggestion is shown to be groundless by the terms of this instrument. Equally groundless is the suggestion that it was suspended during the period the complainant lived in the house with her husband, whether she lived there as agent, or as the wife of her husband. She returned to live with her husband at his request, and it was while they were so living together that

Walker v. Beal et als.

the payments of the rents, interest, and income of the trust property were made, and that the checks for the same were received by the husband, as alleged in the bill of complaint. Webster v. Webster, 4 De G. M. & G. 437.

The clear inference from the conduct of both parties is, that they alike regarded the indenture as valid and operative, and the conduct of the trustee speaks the same language. The error of the argument for the respondents consists in the assumption that the indenture was solely based on separation. Granting that theory, there would be great weight in the argument, but the court has endeavored to show that the indenture cannot properly receive that construction. Temporary reconciliation and subsequent cohabitation did not so annul or suspend the operation of the instrument, because the parties had expressly covenanted that it should not, and the trust properly remained, affected by that covenant. Rundle v. Gould, 8 El. & Bl. 457.

Such being the fact, it is quite clear that none of the authorities cited to the point, by the respondents, have any proper application to the case.

The next proposition of the respondents is, that the rents, interest, and income of the trust property, when paid to the complainant by the trustees, became wholly discharged of the trust, and that the money thus paid to her, as rent, interest, and income, when paid by her to the husband, became the property of the husband. When the payments were made to the complainant, the several sums, as the proposition concedes, were so paid on account of, and for the net rents, interest, and income of the trust property.

The next point made is, that the rents, interest, and income became discharged of the trust when the husband was suffered by the wife to receive the checks and to collect the money. Unless it be assumed that the husband cannot be the trustee for his wife in any case, the proposition ought not to be sustained, as it would give effect to a positive fraud. Delivery of the checks was made to him, in every case, upon his unconditional assurance that he would invest the money for her benefit and that of her children, and in the belief induced by his own rep

Walker v. Beal et als.

resentations that he was more competent to transact business than the wife, to whom the funds belonged.

But the husband may be trustee for his wife of gifts to her from others, or of the rents, interest, and income of property given by himself to her in trust, and lawfully held by trustees, for her sole use and benefit. 2 Story's Eq. Jur. 1380; 3 Kent Com. 163.

Gifts from the husband to the wife may be supported as her separate property, if they be not prejudicial to creditors, even without the intervention of trustees. Nevers et al. v. Scott et al., 9 How. 22; Rundle v. Gould, 8 El. & Bl. 457; Woodward v. Woodward, 8 Law Times, N. s. 749; Grant v. Grant, 12 Law Times, N. S. 721; Riley v. Riley, 25 Conn. 154; Turner v. Nye et al. 7 Allen, 181; Wallis v. Stone, 9 Cal. 479; Dallinger's Case, 35 Penn. St. 357.

All the checks came from the trustees as payments for the rents, interest, and income of the trust property, and the proof is entirely satisfactory that the husband received the avails, as belonging to the wife, under the indenture, and agreed to invest it for her benefit and that of her children. Such arrangement imposes on the husband the character of trustee, especially in a case where it is concerning her separate property, and where to hold otherwise would sanction misrepresentation and fraud. Consent of the complainant that her husband should receive the checks, and collect the money as his own property, was never given, and he never received the money with any such understanding. Bell on. H. & W. 525, 526, 531, 534.

Should the court overrule those defences, the next objection of the respondents is, that the complainant is precluded from setting up the claim, by the indenture of compromise. But the answer made by the complainant to the proposition is decisive. She was a mere formal party to the adjustment, and it concerned only the residue of the estate, after the payment of all debts, liabilities, and legacies. The purpose of the instrument was to effect an adjustment between the heirs-at-law and the residuary legatee, and as there was no concealment of this claim on the part of the complainant, the defence of estoppel is not maintained.

Robinson v. Mandell et al.

The only remaining objection is, that the acceptance by the complainant of the provision made for her in the will of the husband is inconsistent with the claim she now makes; but the court is not able to adopt that conclusion, or perceive that it finds any support in the provisions of the will. On the contrary, the declared intention of the testator was, that the amount secured to his wife in the indenture, coupled with the provision made for her in his will, should be in full for her separate maintenance, and in lieu of dower.

Our conclusion is, that none of the defences set up in the answer can be sustained, and that the complainant is entitled to a decree for the amount.

HETTY H. ROBINSON v. THOMAS MANDELL et al.

If the respondent have no personal knowledge of the matter set forth in any particular allegation of the bill of complaint, a denial by the respondent upon information and belief is sufficient to make it necessary for the complainant to prove the same. The obvious purpose of the act of July 16, 1862, as to the competency of witnesses in the United States courts, was to bring the State and Federal courts into a more harmonious course of decision upon this subject.

The effect of the act of July 2, 1865, was to produce diversity between the rules of decision, in the State and Federal courts.

By the act of March 3, 1865, it is provided, that neither party shall be allowed to testify against the other, under the circumstances described in the act, unless called by the opposite party, or required to testify by the court.

The several acts of Congress, as to the competency of witnesses, indicate an intent upon the part of Congress to legislate that evidence of title to real estate and rules of decision in all controversies affecting rights of property shall be the same in the Federal and State courts of the same State and district.

Where an executor or administrator is a party under the law of this State, the other party cannot be admitted to testify in his own favor, unless the contract was originally made with a party who was living, and competent to testify, and therefore the complainant in this case was not a competent witness to testify to any transaction with, or statement by, the testatrix.

Equity acknowledges the rule that a representation made by one party for the purpose of influencing the conduct of the other party will in general be sufficient to entitle such other party, if induced to act upon such representation, to relief.

Such representations must be proved by the party who alleges they were made.

In this case it was held that the alleged contract that the complainant and Sylvia Ann Howland were to exchange wills, and neither to make any new will, without first returning to the other the will thus received, was not proved.

Robinson v. Mandell et al.

Where two persons agree to make mutual wills, and both execute the agreement, it is held that neither can properly make a will without notice to the other.

Equity only interposes to enforce the agreement.

In this case there was no competent evidence to show that there was any agreement as to the making of mutual wills, and there was nothing on the face of the instruments to warrant any such conclusion.

THIS was a bill in equity, setting up a special contract for an exchange of wills between the complainant and Sylvia Ann Howland, and that neither should make any other will without notice to the other, and the return of other's will. Complainant alleged that she was the niece and sole heir-at-law of Sylvia Ann Howland, deceased, leaving a will disposing of her estate; that in the month of September, 1860, she, the complainant, was possessed in her own right of property derived from her mother, who was the sister of the testatrix; that her aunt, then in full life, was at that time at variance with the father of the complainant, and was desirous of excluding him from inheriting, by will or otherwise, from the complainant any part of the property she so derived from her mother, and to exclude him, in case she, the complainant, should survive her aunt, from inheriting any part of the property that she, at the decease of her aunt, should derive from her aunt's estate. Actuated by those motives, the bill of complaint alleged that the said Sylvia Ann at the same time requested the complainant to make a will disposing of her estate, so that in case of her decease before her father, he should. not in any manner, by will or otherwise, inherit any part of the property so derived, or to be derived, and promised the complainant, if she would comply with the request, that she, the decedent, would make her will in favor of the complainant; and the allegation was, that it was at the same time mutually agreed between the partics that the respective wills, so to be made, were to be exchanged, and that each was to have possession of the will of the other, and that neither was to make any other will without notifying the other, and returning the other's will so to be held in exchange.

Performance of the agreement on the part of the complainant was also alleged in the bill of complaint.

The substance and effect of those allegations was, that the