Mr. Chief Justice Shepard
delivered the opinion of tha Court:
From this decree the defendant has appealed.
1. The first question raised by the assignment of errors re[65]*65lates to the competency of the testimony of complainant as a witness on his own behalf. Where one of the original parties to a transaction or contract has since died, become insane, or otherwise is incapable of testifying in relation thereto, the other party thereto shall not be allowed to testify as to any transaction with, or declaration or admission of the said deceased, or otherwise incapable party in any action between him, or any person claiming under him, and the executors, heirs, etc., or other person legally representing the deceased or incapable person, •unless he can be called to testify thereto by the opposite party, or the opposite party first testify in relation to the same, or unless the contract or transaction was made by or had with an agent of the deceased or otherwise incapable party, and said agent testifies in relation thereto, or “unless called to testify thereto by the court.” Code, article 1064 [31 Stat. at L. 1357, chap. 854]. None of these exceptional conditions existed when complainant’s deposition was taken before the examiner who noted defendant’s exceptions to the competency of the witness, which was all that he had authority to do. At the preliminary hearing the defendant objected to the consideration of the deposition. Clearly, the witness was not competent to testify relating to a contract with, or declarations by the deceased, at the time that his deposition was taken, for he had not then been called to testify thereto by the court. It would seem that the proper practice, where the testimony is taken in the ordinary course of equity procedure, is to move the court for an order calling the party to testify with notice to the opposite party. Robinson v. Mandell, 3 Cliff. 169—176, Fed. Cas. No. 11,959; Eslava v. Mazange, 1 Woods, 623, Fed. Cas. No. 4,527. The statute is a salutary one to prevent the great injustice that would so often result from permitting one party to testify as a witness on his own behalf as to transactions between him and a deceased person, whose version of the same could not be given. The reservation of the power in the court to call the party to testify was made in order to provide for such extreme and special cases as might arise, in which it would be a great hardship not to do so. The power is not to be exercised as a matter of grace, but with [66]*66great care and caution. Eslava v. Mazange, 1 Woods, 623-626, Fed. Cas. No. 4,527, per Mr. Justice Bradley. When the deposition, taken without leave, was offered at the hearing and objected to it was ordered “to be considered with the same effect as if he had been called to testify thereto by the court.” It is argued that as the court had all the depositions before him, and could from the competent testimony then best determine whether there was such a case of hardship as to call for the exercise of the discretion confided by the- statute, the order was equivalent to one made on preliminary motion, calling the witness to testify. On the other hand, it is argued that the power to call a party to testify is not satisfied by an order to consider his previously taken testimony, as if he had been called by the court to testify.
The question is. a difficult one, but, in the view we have taken of the case on its merits, we do not find it necessary now to determine it.
2. An oral agreement to transfer title to land by will is equally enforceable with one to transfer by deed, where there is satisfactory proof of the agreement itself, and of the performance of acts thereunder by the party to whom the promise has been made, in obvious reliance upon such promise, so as to render a restoration of his condition impracticable.. If such equities were denied recognition, injustice of the kind which the statute of frauds cannot be thought to have in contemplation would follow. Whitney v. Hay, 15 App. D. C. 164-184, s. c. 181 U. S. 77, 45 L. ed. 758, 21 Sup. Ct. Rep. 537. The evidence fails to show such equities, and- the trial justice was clearly right in refusing the specific performance prayed for. The testimony of the complainant himself falls short of establishing the particular agreement with the requisite certainty, and is rather weakened than reinforced by the testimony of the other witnesses offered by him. These testify to declarations of the said Oatherine. of an intention to make ample provision for the complainant in her will, but no declaration shows that she had entered into an agreement to devise her property to him. The declarations go no further than to show that she had been very happy [67]*67with complainant, who had been a kind husband; that he had always turned his earnings over to her; that what he had was hers, and what she had was his; and that she intended to provide for him in her will. The inferences deducible from them all taken together are that she intended this provision by way of bounty, and not in performance of any agreement or contract. Notwithstanding these declarations of intention, she died intestate, after nine years of married life, with no excuse for failing to make, a will, although she had been warned by her physician, not long before her sudden death, that she would probably not live much longer.
3. The substantial question to be determined is whether there is sufficient evidence to sustain the decree awarding compensation to complainant in the sum of $3,150 for money contributed by him to the improvements made upon the wife’s land, and to the discharge of encumbrances thereon. The court found, as stated in the order of reference to the auditor, that while specific performance of the alleged contract was denied there was sufficient evidence to show that the complainant had paid money for the purposes aforesaid, under some agreement with his said wife, and the auditor was directed to state and report an account thereof. Founded on the deposition of the complainant, the auditor stated the account crediting the complainant, first, with $600 contributed by him on the day after the marriage, and next with the entire amount of his wages for nine years' at the rate of $50 per month, namely, $5,400. The sum of $6,000 was charged with the value of the I street property, namely, $2,850, leaving a balance due complainant of $3,150.
It is a settled principle that where a husband pays the consideration, and has a conveyance of the purchased property made to his wife, the presumption is against a resulting trust for his benefit, and the proof to overcome this presumption must be clear and satisfactory. Cohen v. Cohen, 1 App. D. C. 240, 244; McCormick v. Hammersley, 1 App. D. C. 313-320; McCartney v. Fletcher, 11 App. D. C. 1-11.
The rule applies with even stronger force in a case like this, where the husband delivers money to the wife, whether derived [68]*68from his earnings of otherwise, when we consider that he is under the direct legal obligation of support and maintenance.
In considering the evidence it must be remembered that the property was acquired and paid for by the wife before the marriage, and she had entered into a contract to erect the two houses, and obtained a loan of $4,000 for the purpose. At the date of the marriage the work was ready for laying the first floor.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Chief Justice Shepard
delivered the opinion of tha Court:
From this decree the defendant has appealed.
1. The first question raised by the assignment of errors re[65]*65lates to the competency of the testimony of complainant as a witness on his own behalf. Where one of the original parties to a transaction or contract has since died, become insane, or otherwise is incapable of testifying in relation thereto, the other party thereto shall not be allowed to testify as to any transaction with, or declaration or admission of the said deceased, or otherwise incapable party in any action between him, or any person claiming under him, and the executors, heirs, etc., or other person legally representing the deceased or incapable person, •unless he can be called to testify thereto by the opposite party, or the opposite party first testify in relation to the same, or unless the contract or transaction was made by or had with an agent of the deceased or otherwise incapable party, and said agent testifies in relation thereto, or “unless called to testify thereto by the court.” Code, article 1064 [31 Stat. at L. 1357, chap. 854]. None of these exceptional conditions existed when complainant’s deposition was taken before the examiner who noted defendant’s exceptions to the competency of the witness, which was all that he had authority to do. At the preliminary hearing the defendant objected to the consideration of the deposition. Clearly, the witness was not competent to testify relating to a contract with, or declarations by the deceased, at the time that his deposition was taken, for he had not then been called to testify thereto by the court. It would seem that the proper practice, where the testimony is taken in the ordinary course of equity procedure, is to move the court for an order calling the party to testify with notice to the opposite party. Robinson v. Mandell, 3 Cliff. 169—176, Fed. Cas. No. 11,959; Eslava v. Mazange, 1 Woods, 623, Fed. Cas. No. 4,527. The statute is a salutary one to prevent the great injustice that would so often result from permitting one party to testify as a witness on his own behalf as to transactions between him and a deceased person, whose version of the same could not be given. The reservation of the power in the court to call the party to testify was made in order to provide for such extreme and special cases as might arise, in which it would be a great hardship not to do so. The power is not to be exercised as a matter of grace, but with [66]*66great care and caution. Eslava v. Mazange, 1 Woods, 623-626, Fed. Cas. No. 4,527, per Mr. Justice Bradley. When the deposition, taken without leave, was offered at the hearing and objected to it was ordered “to be considered with the same effect as if he had been called to testify thereto by the court.” It is argued that as the court had all the depositions before him, and could from the competent testimony then best determine whether there was such a case of hardship as to call for the exercise of the discretion confided by the- statute, the order was equivalent to one made on preliminary motion, calling the witness to testify. On the other hand, it is argued that the power to call a party to testify is not satisfied by an order to consider his previously taken testimony, as if he had been called by the court to testify.
The question is. a difficult one, but, in the view we have taken of the case on its merits, we do not find it necessary now to determine it.
2. An oral agreement to transfer title to land by will is equally enforceable with one to transfer by deed, where there is satisfactory proof of the agreement itself, and of the performance of acts thereunder by the party to whom the promise has been made, in obvious reliance upon such promise, so as to render a restoration of his condition impracticable.. If such equities were denied recognition, injustice of the kind which the statute of frauds cannot be thought to have in contemplation would follow. Whitney v. Hay, 15 App. D. C. 164-184, s. c. 181 U. S. 77, 45 L. ed. 758, 21 Sup. Ct. Rep. 537. The evidence fails to show such equities, and- the trial justice was clearly right in refusing the specific performance prayed for. The testimony of the complainant himself falls short of establishing the particular agreement with the requisite certainty, and is rather weakened than reinforced by the testimony of the other witnesses offered by him. These testify to declarations of the said Oatherine. of an intention to make ample provision for the complainant in her will, but no declaration shows that she had entered into an agreement to devise her property to him. The declarations go no further than to show that she had been very happy [67]*67with complainant, who had been a kind husband; that he had always turned his earnings over to her; that what he had was hers, and what she had was his; and that she intended to provide for him in her will. The inferences deducible from them all taken together are that she intended this provision by way of bounty, and not in performance of any agreement or contract. Notwithstanding these declarations of intention, she died intestate, after nine years of married life, with no excuse for failing to make, a will, although she had been warned by her physician, not long before her sudden death, that she would probably not live much longer.
3. The substantial question to be determined is whether there is sufficient evidence to sustain the decree awarding compensation to complainant in the sum of $3,150 for money contributed by him to the improvements made upon the wife’s land, and to the discharge of encumbrances thereon. The court found, as stated in the order of reference to the auditor, that while specific performance of the alleged contract was denied there was sufficient evidence to show that the complainant had paid money for the purposes aforesaid, under some agreement with his said wife, and the auditor was directed to state and report an account thereof. Founded on the deposition of the complainant, the auditor stated the account crediting the complainant, first, with $600 contributed by him on the day after the marriage, and next with the entire amount of his wages for nine years' at the rate of $50 per month, namely, $5,400. The sum of $6,000 was charged with the value of the I street property, namely, $2,850, leaving a balance due complainant of $3,150.
It is a settled principle that where a husband pays the consideration, and has a conveyance of the purchased property made to his wife, the presumption is against a resulting trust for his benefit, and the proof to overcome this presumption must be clear and satisfactory. Cohen v. Cohen, 1 App. D. C. 240, 244; McCormick v. Hammersley, 1 App. D. C. 313-320; McCartney v. Fletcher, 11 App. D. C. 1-11.
The rule applies with even stronger force in a case like this, where the husband delivers money to the wife, whether derived [68]*68from his earnings of otherwise, when we consider that he is under the direct legal obligation of support and maintenance.
In considering the evidence it must be remembered that the property was acquired and paid for by the wife before the marriage, and she had entered into a contract to erect the two houses, and obtained a loan of $4,000 for the purpose. At the date of the marriage the work was ready for laying the first floor. She was evidently a thrifty woman, and was engaged in an apparently profitable business. So far she had acted upon her own responsibility. The complainant, at the time of the. marriage, was receiving wages of $50 per month, as the driver of a wagon. He testifies that he had accumulated $600, which he turned over to his wife on the day after the marriage. After about two years he gave up the wagon-driving and opened a market stand. Having run this for some time he gave it up, and began driving the wagon again for the same wages. During the whole time the wife was carrying on her business in the Centre Market, and was occasionally assisted by complainant and her son. Complainant gave no evidence of a bank account before or after the marriage, and no written evidence of the possession and payment over of the $600. Statements from the books of several building associations of which Mrs. Bowles was a member were produced by officers of the same, who testified as witnesses. The deposits were in her name. The first entry is one of January, 1896, $50. March and May show deposits of $200 each. The remaining deposits extending from January, 1897, to February, 1902, are—with the exception of October, 1897, $75, and June, 1898, $100—in sums of $25, $20, and $10. Another statement of deposits by Mrs. Bowles commences in September, 1891, with $400. Deposits in another, ranging from $500 to $50, were shown from October, 1891, to July, 1895. After that the deposits to February, 1902, show sums of $50 and $25, save that in December, 1895, there was one of $150, and in December, 1896, $850. These moneys were from time to time paid by check to Mrs. Bowles. The only record of a deposit by complainant is that of $10 in May, 1901, and that was to his own account. After the death of his wife complainant re[69]*69ueived a check from one of the associations June 11, 1902, of $103.50. Later, as administrator of her estate, he received the sum of $1,225.66. The building lien and encumbrances had ¡long before been discharged. Upon the unsupported evidence •of the complainant he was given credit for his entire wages for nine years, notwithstanding that for a period he was not 'receiving wages at all, and without any deduction whatever for his own necessary incidental expenses for clothing and support, lit is true the complainant testified that the whole of his earnings were paid over to the wife, but he does not account for his own expenses during the period. He was certainly not entitled to claim support of his wife. That he paid his earnings over to his wife, who seemed to have managed all of the family affairs, is established by her declarations, but what proportion of them went to his support nowhere appears. Assuming that in addition to his net earnings he contributed the $600, which was used in paying for the houses, we find no evidence sufficient to show that these amounted to more than the sum of $2,850 that was the cost of the I street property, which was conveyed to him. Giving him the benefit of every inference that can justly be deduced from the evidence, we cannot find that the complainant contributed to the fund more than the sum of $2,850, represented by the purchase of the I street property. As this property was conveyed to him alone, and he needs no relief from a court of equity to assist or quiet his title thereto, we are of the opinion that the auditor’s report should have been rejected, and a decree entered dismissing the bill.
4. A serious question has been raised as to whether, after refusing specific performance of the alleged agreement, the equity court should have retained the bill for an award of compensation in lieu thereof, instead of remitting the complainant to a court of law for the further remedy. The point was not made in the court below, and error has not been specifically assigned thereon. We have not considered it necessary to pass upon the question, and it is not to be inferred from our determination of the case on its merits that we have incidentally affirmed the further jurisdiction of equity in the premises.
[70]*70For the reasons given the decree will be reversed with costs, and- the case remanded, with directions to set aside the auditor’s report and dismiss the bill. Reversed.