The opinion of the court was delivered by
Ross, J.
The only material controverted fact is, whether the orators have established by the requisite measure of proof, that the [163] barn was built by them at the request of the trustee, Mary E. Wilbur. She denies in her answer making any such request in connection with her husband, or otherwise, and the answer is in this respect responsive to the bill. The only direct witness to such request is the orator, S. M. Field. Where a material fact stated in the bill is denied in the answer, the rule is well settled that something Inore than the testimony of one witness is required to sustain the bill and entitle the orator to a decree. The orator must overcome the denial in the answer by what is deemed equal to the testimony of two witnesses. Shattuck v. Gray et al. 45 Vt. 87. This rule does not require that the denial in the answer shall be overcome by the testimony of two living witnesses who were present and cognizant of the fact in controversy. Circumstantial evidence may, if of equal weight and credibility, take the place of the testimony of one or both of such witnesses. The amount of testimony or evidence required to be produced by the orator in such cases, though expressed numerically, is not always the same. If the defendant, by his answer, or otherwise, is shown to-be a very reliable and credible witness, it is manifest that more weighty testimony should be required to overcome the denial in the answer, and to establish the averment in the bill, than there should be if the defendant was shown to be unreliable and entitled to but little credence. So, too, the testimony of witnesses, when to the same facts, is not always doubled by doubling the number. The rule must be construed and applied with good sense and reason, to each case, having reference to other well-established rules and principles in regard to weighing testimony. It requires that the credence and- weight to be given to the answer, remembering that the orator has called the defendant into the case as a witness, is to be fairly overcome, and the averment in the bill is to be reasonably established by a preponderance which the law has denominated the testimony of a second witness. We think that the orators have established by this measure of proof, that the defendant, Mary E. Wilbur, did, with her husband, request the orators to build the barn for which recovery is sought in this suit. It is substantially conceded, that the orator, S. M. Field, on the occasion of the request, was in[164] formed that the title to the land was held by the defendant Mary E., in trust for her children ; that the said Aaron Wilbur was in poor health, not expected to live long, was about to leave the state for his home in Savannah, Georgia, and that he had no property in this state. Under such facts and circumstances, it can hardly be credited that the orators would have incurred the expense of erecting the barn without the request and acquiescence of the person holding the title, and without relying in some measure on the trust property for their pay. In addition to these facts, the orator S. M. Field directly testifies that Mary E. requested him to erect the barn, and pointed out its location and the orator B. B. Field testifies, in substance, that on a subsequent occasion, and after the death of the husband, Mary E. acknowledged her liability and promised to pay for erecting the barn. Mary E. says in her answer, that the orators urged her to pay for building the barn, and she told them she would see about it. The other material facts conceded or established in the case are, that a barn was needed for the use of the trust property ; that Aaron Wilbur’s estate is insolvent, and can only be reached,'if at all, by going into a foreign jurisdiction, and that the trustee has not any known property from which the orators can be compensated for erecting the barn, except the trust property. Without.the employment or request of the trustee, it is well settled that trust property cannot be charged to pay for expenses and improvements which are beneficial to it. Noyes v. Blakeman, 6 N. Y. 569. With such employment or request, although the trustee specially stipulates that he shall not be personally liable, the trust property may be charged with expenses and improvements made by third persons, if such was the understanding between the trustee and the party incurring the expense or making the improvements. Noyes v. Blakeman, supra. This must be taken with the limitation that the improvements are such as, considering the nature of the trust and property, are needful to be made, and as a court of equity will sanction. The trustee will not be allowed to improve the cestuis que trust out of a beneficial enjoyment of the trust property; neither will third parties be allowed to make such improvements at the request or employment of the trustee, and [165] charge the same upon the trust property to the detriment of the trust estate. In some cases, where the oestuis quo trust are of age, the court will compel them to elect, whether to receive the increased rents and profits occasioned by the improvements, by charging the expense of the improvements upon the trust property, or to refuse payment for the improvements, and receive such rents and profits as the property would produce without the improvements. Such questions have most frequently arisen in cases where the trustee had made the improvements. M. E. Church v. Jaques et al. 1 Johns. Ch. 450 ; Root v. Yeoman et al. 15 Pick. 488.
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The opinion of the court was delivered by
Ross, J.
The only material controverted fact is, whether the orators have established by the requisite measure of proof, that the [163] barn was built by them at the request of the trustee, Mary E. Wilbur. She denies in her answer making any such request in connection with her husband, or otherwise, and the answer is in this respect responsive to the bill. The only direct witness to such request is the orator, S. M. Field. Where a material fact stated in the bill is denied in the answer, the rule is well settled that something Inore than the testimony of one witness is required to sustain the bill and entitle the orator to a decree. The orator must overcome the denial in the answer by what is deemed equal to the testimony of two witnesses. Shattuck v. Gray et al. 45 Vt. 87. This rule does not require that the denial in the answer shall be overcome by the testimony of two living witnesses who were present and cognizant of the fact in controversy. Circumstantial evidence may, if of equal weight and credibility, take the place of the testimony of one or both of such witnesses. The amount of testimony or evidence required to be produced by the orator in such cases, though expressed numerically, is not always the same. If the defendant, by his answer, or otherwise, is shown to-be a very reliable and credible witness, it is manifest that more weighty testimony should be required to overcome the denial in the answer, and to establish the averment in the bill, than there should be if the defendant was shown to be unreliable and entitled to but little credence. So, too, the testimony of witnesses, when to the same facts, is not always doubled by doubling the number. The rule must be construed and applied with good sense and reason, to each case, having reference to other well-established rules and principles in regard to weighing testimony. It requires that the credence and- weight to be given to the answer, remembering that the orator has called the defendant into the case as a witness, is to be fairly overcome, and the averment in the bill is to be reasonably established by a preponderance which the law has denominated the testimony of a second witness. We think that the orators have established by this measure of proof, that the defendant, Mary E. Wilbur, did, with her husband, request the orators to build the barn for which recovery is sought in this suit. It is substantially conceded, that the orator, S. M. Field, on the occasion of the request, was in[164] formed that the title to the land was held by the defendant Mary E., in trust for her children ; that the said Aaron Wilbur was in poor health, not expected to live long, was about to leave the state for his home in Savannah, Georgia, and that he had no property in this state. Under such facts and circumstances, it can hardly be credited that the orators would have incurred the expense of erecting the barn without the request and acquiescence of the person holding the title, and without relying in some measure on the trust property for their pay. In addition to these facts, the orator S. M. Field directly testifies that Mary E. requested him to erect the barn, and pointed out its location and the orator B. B. Field testifies, in substance, that on a subsequent occasion, and after the death of the husband, Mary E. acknowledged her liability and promised to pay for erecting the barn. Mary E. says in her answer, that the orators urged her to pay for building the barn, and she told them she would see about it. The other material facts conceded or established in the case are, that a barn was needed for the use of the trust property ; that Aaron Wilbur’s estate is insolvent, and can only be reached,'if at all, by going into a foreign jurisdiction, and that the trustee has not any known property from which the orators can be compensated for erecting the barn, except the trust property. Without.the employment or request of the trustee, it is well settled that trust property cannot be charged to pay for expenses and improvements which are beneficial to it. Noyes v. Blakeman, 6 N. Y. 569. With such employment or request, although the trustee specially stipulates that he shall not be personally liable, the trust property may be charged with expenses and improvements made by third persons, if such was the understanding between the trustee and the party incurring the expense or making the improvements. Noyes v. Blakeman, supra. This must be taken with the limitation that the improvements are such as, considering the nature of the trust and property, are needful to be made, and as a court of equity will sanction. The trustee will not be allowed to improve the cestuis que trust out of a beneficial enjoyment of the trust property; neither will third parties be allowed to make such improvements at the request or employment of the trustee, and [165] charge the same upon the trust property to the detriment of the trust estate. In some cases, where the oestuis quo trust are of age, the court will compel them to elect, whether to receive the increased rents and profits occasioned by the improvements, by charging the expense of the improvements upon the trust property, or to refuse payment for the improvements, and receive such rents and profits as the property would produce without the improvements. Such questions have most frequently arisen in cases where the trustee had made the improvements. M. E. Church v. Jaques et al. 1 Johns. Ch. 450 ; Root v. Yeoman et al. 15 Pick. 488.
The deed creating the trust in Mary E. Wilbur for her children, is silent as to the management of the property. Prom the age of oestuis que trust, it is evident that it was the intention of the donor, Aaron Wilbur, that the property should remain in trust several years. A farm of forty acres ordinarily requires a barn for its proper and economical management. The trustee being left unrestricted by the trust deed in regard to the management of the trust property, has general discretionary powers to manage and superintend the property. In shch cases, sums reasonably expended in building farm houses, and in draining, and manuring, and other improvements, wiH be allowed to a trustee. Hill Trustees, 571. In a settlement with the trustee, the court would not ordinarily withdraw the trust property from her control, until all such expenses were repaid; and if it did, it would charge the trust property for their payment. 2 Story Eq. ss. 1215, 1239 ; Hill Trustees, 567, 571. We think there is no doubt, on authority and general equity principles, that if Mary E. Wilbur had paid the orators for erecting the barn, in a settlement of her trust account she would be allowed such sum, at least, as the value of the trust property was enhanced thereby, and if the expenditure was made in the exercise of ordinary prudence and in good faith, the sum actually expended by her; and that she would have the right to charge the same upon the trust property, or to hold the property until she was reimbursed. Usually third persons making such improvements at the request of the trustee, are confined to their personal remedy against the trustee. There are [166] exceptions to this rule. Where the trustee, as in this case, resides abroad, and has no property which the orators can reach, and where the trust estate has been enhanced in value and made more productive by the labor and expenditure of the orators thereon, made in good faith at the request of the trustee, we think the orators have the right to have their improvement to the property made a charge upon the property and its income. The orators having erected the barn at the request of the trustee, would have the right as against her to recover on quantum meruit, but as against the cestuis que trust and the property, only such sum as the trust property has been enhanced in value by the erection of the barn, to be paid in such time as the same can be reasonably realized out of the trust property, without any serious detriment to the permanent interests of the cestuis que trust.
The decree of the Court of Chancery is reversed, and the cause remanded, with mandate to refer the same to a master to ascertain the. sum by which the trust property was increased in value by the erection of the barn ; and, on coming in of the report, to enter a decree for the orators for the payment of that sum and the interest thereon, as a charge upon the trust property, to be paid out of the same, or its rents and profits, at such time or times, and in such manner, as that court shall order, and as soon as may be done without serious detriment to the permanent interest of the cestuis que trust therein.