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.

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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 parties 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

Robinson v. Mandell et al.

complainant, in pursuance of her promise, did, on the same day, make and execute a will in due form, by which all the property she then had, or might thereafter acquire, was given and devised to her issue if any, and in default thereof to charitable uses, and that she did thereby exclude her father from all benefit from the will, as specially requested by her aunt, so that in event of her decease before her father, he would not, by inheritance or otherwise, be entitled to any part of her estate; that the will so made and executed was delivered to her aunt, by whom it was kept during her lifetime, and among whose papers it was found after her decease.

Part performance of the contract on the part of the said Sylvia Ann was also alleged, to the effect that she at the same time, in conformity to her promise, caused a draft to be made of her own. will, which was not then completed; but the averment is, that the completion of the same was postponed, with the clear understanding that the will so drawn should be executed and delivered to the complainant under the agreement, whenever she should request the same to be done; and she also averred that she did afterwards make that request, and that the said Sylvia Ann did, on the 11th of January, 1862, complete, sign, and duly execute that draft, as her last will and testament; that before executing the same she signed the paper writing therein called the second page of the will, and that the same was attached to the will before the will was so signed and executed. Delivery of the will so made and executed to the complainant, in pursuance of the agreement, was also alleged, with the paper writing thereto attached; and the complainant averred that the will so made and delivered to her remained in her possession, and that her own will was never returned to her, and that she was not at any time or in any way ever notified that the said Sylvia Ann had made or was about to make any other will.

The alleged breach of the agreement was, that notwithstanding her promises, the said Sylvia Ann did make another will, bearing date September 1, 1863, appointing therein the first-named respondent as executor, and also made a codicil to the same bearing date November 18, 1864, giving and devising a large

Robinson v. Mandell et al.

part of her property to divers persons and corporations, to the exclusion of the complainant, and that she gave and devised the residue of her estate to the other three respondents, in trust, to pay the income thereof to the complainant during her life; and that she made no other provision for the benefit of the complainant, and none whatever for her issue; and that she afterwards on the 2d of July, 1865, deceased, possessed of large real and personal estates.

The prayer of the bill of complaint was, that the first-named respondent, as executor, might be declared to hold the personal estate in trust for the complainant, and that the other respondents might be declared to hold the real estate in trust for her benefit, and that all the respondents might be decreed to account with her, and to deliver to her all the real and personal estate of the deceased.

The respondents admitted that the complainant was the niece and sole heir-at-law of Sylvia Ann Howland, but they denied that the latter was at variance with the father of the complainant. They not only denied that any such motive existed for the alleged request, but averred that the complainant herself was at variance with her father, and that she had repeatedly declared that she would make her will, and keep her father from "receiving any portion of the property she had derived from her

mother."

Specific reference was also made in the answer to the several allegations in the bill of complaint, in respect to the wills and the alleged agreements, as to the exchange and custody of the same, but it is unnecessary to reproduce that part of the answer, as the respondents alleged that they had no knowledge whatever upon the subject. Unable to answer in that behalf from knowledge, they denied upon information and belief "each and every of said averments in said bill of complaint contained."

Sidney Bartlett, B. R. Curtis, F. C. Loring, for complainant. B. F. Thomas, T. D. Eliot, T. M. Stetson, for respondents. CLIFFORD, J. Evidently the cause of action set forth in the bill of complaint is founded in contract, and consequently the rights of the parties must be ascertained from the pleadings and