McKee v. Jones

Burnside, J.

This ejectment engaged the attention of this court on a former occasion, and will be found reported in 3 Barr, 497. The evidence of the parties was substantially the same then as now. On the authority of numerous cases, this court then held that it ought to be left to the jury to determine under the *428 evidence, that the mother added the codicil to create the trust, and if the daughter assented to the trust it still exists. The further argument has satisfied us that the case hears a strong resemblance to the principle settled in Hoge v. Hoge, 1 Watts, 214. Where the trust owes its validity to the fraud of the devisee, the trust arises ex malificio, in which, equity turns the holder of the legal title into a trustee. The defendant below excepted to the plaintiff’s evidence as it was presented to the court; and all the bills of exception have been assigned for error. The first five bills belong to the same class; 'the objections were incompetency and irrelevancy. We think the evidence was both competent and relevant. In 2 Freeman, 34, where a testator having settled lands on his son for life, and having discoursed about altering his will, for fear there should not be enough besides to pay certain legacies to his daughter, was told by the son that he would pay them if the assets were deficient; it was decreed, that having suffered his father to die in peace on a promise which had prevented him from altering his will, he should pay them. What is this case but an engagement by the daughter to the mother on her death-bed, when the codicil-was signed, that the devise in the codicil was in trust for her brother. The admission of this evidence to the jury is one of the points strongly urged as incompetent for the purpose offered. We believe it admissible on the principle settled in Hoge v. Hoge, and the cases there cited.

The fifth and sixth bills of exceptions. This evidence was to account for the delay in bringing the ejectment, and to show that the plaintiff was largely indebted, and much absent from the neighbourhood. It is time the evidence was of little moment in the case. It did not make title, and was hut a small circumstance to strengthen the title exhibited. It was only offered to account for the delay in bringing the action. An ejectment in Pennsylvania being in some measure in the nature of a bill in equity, it is well to account for delay in all equitable actions. We cannot say it was error in the court to admit the evidence for the purpose offered.

Seventh bill of exceptions and assignment of error. After the defendants had closed their evidence, the plaintiffs called a witness and offered to prove that Robert Ackleson, (whose testimony had been first taken by the plaintiff on a commission to Kentucky, and read by the plaintiff, and afterwards taken on a commission by the defendant, in which he contradicted his first evidence,) told him to divide the grain for the shares of Jones and McKee, for the purpose of corroborating the testimony of Ackleson, as given in evidence by *429 plaintiff, and contradicting that given by defendants. The credit of a witness may also be impeached by proof that he has made statements out of court contrary to what he has testified at the trial: 1 Greenl. Ev. see. 462. Statements by a witness at another time, though admissible to corroborate, are not equally so to confirm him. This is the general rule. But component declarations may be given in contradiction of evidence tending to show that the testimony at the bar is a fabrication of recent date,' and to show that the same statement was made before its ultimate effect on the question trying -could have been foreseen: Craig v. Craig, 5 Rawle, 91 . Whether evidence shall be given of contradictory statements made by a witness examined on the trial, without first interrogating or advertising the witness proposed to be contradicted, is a matter for the discretion of the court trying the case; and their decision will not be reviewed in this court: Shark v. Emmet, 5 Whart. 288 . Here the witness resided in Kentucky. He was not examined in open court. In his second deposition he denied the truth of all he had stated in his first deposition.’ The declarations purposed to be proved were made prior to either deposition, and were in accordance with the evidence given on the first commission. It would seem that, the case was with the rule in Craig v. Craig, 5 Rawle, 91 .

The next errors assigned are to the answers of the court to the first, second, third, and fourth points put by the counsel for the defendants. There is but one question worthy of consideration in these points, and that is, whether, upon the marriage of Alexander McKee with Eleanor Jones, he thereby became a purchaser for a valuable consideration of a legal estate in the premises during the joint lives of himself and of the said Eleanor. It is contended that his estate is not subject to the trust unless he had notice before the marriage. For this proposition the learned counsel admits, they can find no direct authority or ease in point. That I readily admit, but they endeavour to support this extraordinary doctrine on the principle that marriage is a good and valid consideration. This is not denied. It is so- for many purposes. But I will not agree that marriage will enlarge the husband’s estate beyond the title of the wife in her real property. In Chew v. The commissioners of Southwark, 5 Rawle, 163 , the court held that a mere naked seizure of the freehold by the wife as trustee, will not support curtesy. The husband, if entitled to the estate at all by the curtesy, has the right to it immediately upon the death of his wife. But if she dies, seized only in trust for the use of another, and not for her own benefit at the time of her death, the husband cannot *430 take. To permit the husband to take the estate of the- wife, when she was only seised of the freehold as a trustee, would be a violation of the trust and of the rights of the cestui que trust, which are paramount to that of either the wife or the husband; Gilbert on Uses and Trusts, 174; 5 Rawle, 165 . So in Dennison v. Goehring, reported ante, p. 402. Mr. Justice Kennedy, in 5 Rawle, 165 , recognises the law to be, that where a mother transfers a large portion of her property to her children by her deceased husband, it is good against a subsequent husband who married without knowledge of the fact. See King v. Cotten, 2 P. Wms. 358.

There is no other point in the case that is necessary to consider.

Judgment affirmed..