author: Church, C. J. Storrs, and Hinman, J’s,

text:
    Fortune vs. Buck and others.
    The probate court is the only tribunal competent to decide the question of the due execution of a will.
    Where a will containing devises of real estate, and purporting to be attested by three subscribing witnesses, lias been duly proved, and approved, in the court of probate, the due execution of such will can not afterward be impeached in a collateral suit, by proving that one of the attesting witnesses was, at the time of the execution of the will, the wife of the devisee.
    By the proviso of the third section of the act, relating to the settlement of estates, a devise, made to any heir at law of the testator, is excepted from the operation of the previous clause of said section, which makes a devise or legacy to a subscribing witness to a will void. (Two judges dissenting.)
    A devise of real estate, by a will duly attested and proved, to any heir at law of the testator, who is a subscribing witness to the execution of the will, vests, in such devisee, a title to the same, as testate estate. (Two judges dissenting.)
    Where the wife of a devisee under a will, who is an heir at law of the testator, is a subscribing witness to the execution of such will, whether the same legal consequences follow as if the devisee, instead of his wife, had been the subscribing witness?—Qu.

    This was a petition for a partition of certain real estate, to which the plaintiff claimed title, as co-heir, with Winthrop Buck and others, of Martha Bulkley, deceased. Upon the trial of the cause, the court found the following facts. Said Martha died, on the sixteenth day of October, 1845, seized, in fee simple, of the premises in question, and leaving a last will and testament, containing the following devise of the premises in question, to the defendant, Buck: “ I give and devise to Winthrop Buck, of Wethersfield, my Buck lot in Hartford meadow.” Said will was duly approved by a decree of the court of probate, which decree, upon an appeal to the superior court, was affirmed. Said will was attested by three witnesses only, of whom Eunice Buck was one, and, at the time of said attestation, said Eunice was the wife of the defendant, (if evidence was admissible to prove that fact,) and the plaintiff and said Winthrop were heirs at law of said Martha.
    The questions, as to the admissibility of evidence, to prove that said Eunice was the wife of the defendant, whether said premises were intestate estate, and as to the decree which the superior court should be advised to render, upon the aforesaid facts, were reserved for this court.

      Welles and Fellowes, for the plaintiff, contended,
    1. That the devise is void. A devise to a witness is made void by statute expressly, and it makes no difference, whether the devise be to the witness, or to the husband of the witness. Merriam v. The H. & N. H. R. R. Co., 20 Conn. R., 363.
    The statute is remedial, and to be so construed as to suppress the mischief, and advance the remedy. All the American authorities place this construction upon it, and hold, that it is the object of the statute to extinguish in the witness all interest, whether direct or derivative. Jackson v. Woods, 1 Johns. Cas., 163. Jackson v. Durland, 2 Johns. Cas., 314. Winslow v. Kimball, 25 Maine R., 493. Clark v. Hoskins et al., 6 Conn. R., 106.
    2. The probate of the will does not preclude the plaintiff from proving that the devise is void.
    The probate of the will merely establishes thé fact of its proper execution, as a testamentary paper, and leaves it to operate or not, as it respects its particular parts, according to its legal force. 1 Jarman on Wills, 21, 22, 23. 1 Williams’ Executors, 172, 368, 369. 3 Miller’s Lou. R., 170, 175, 176. Mass. Rev. St., p. 421, § 32.
    3. The meaning of the proviso to the third section of chapter first, of the act relating to the settlement of estates, is, to save to the heir such portion as he would take, as heir, if it can be done consistently with the object of the statute. There is no necessity of making such a devise void, in order to qualify the witness. If the devise and the heritable portion be equal in value, his interest would be balanced, and he would be competent, without the statute. If the devise be less than the heritable portion, to sustain, the will would be adverse to his interest. In either case he would be competent, without the statute. There would, therefore, be no need of the statute in either of these cases, and the proviso would be perfectly proper. Why render the devise void, when the object of the statute does not require it? But when that object does require it, as when the devise is greater than the heritable portion, why not render it void ?
    Again: not only is there no reason for applying the statute to the two cases above supposed, but there is a positive reason why they should be excluded, by such a proviso. It is this. If the devise be made void by the statute, it is intestate estate, and the heir to whom it is made, will be compelled to share it with the other heirs. To prevent such a result is the object of the proviso. The proviso, therefore, when filled out according to its meaning and spirit, will read as follows, to wit:
    Provided, such devise be not made to an heir at law of the testator, who would be competent, without making the devise void.
    But if the heir would take a greater interest as devisee than he would as heir, the devise is void, by force of the statute. That it is so, unless the proviso excludes such a case, must be admitted. Does the proviso make such exclusion ? If no reason can be discovered for so construing the proviso, or if such construction gives it an effect impairing the object of the statute, without any assignable reason, and we can discover a meaning which promotes that object, and which even is required, to avoid an incidental hardship, this must be the true meaning.

      Hungerford and Parsons, contra,
    1. The probate of a will is conclusive, as to all matters and facts which such probate implies, until it is regularly set aside, in a proper proceeding for that purpose. Archer v. Moore, 2 Vern., 8. Nelson v. Oldfield, 26 Vern., 76. Nash v. Wells, 1 Lev., 236. Plume v. Beal, 1 P. Wms. Rex v. Vincent, 1 Stra., 481. Bush v. Sheldon, 1 Day, 170. Judson v. Lake, 3 Day, 318. Jarman on Wills, numerous cases in note, p. 23.
    2. The probate and the superior courts have both found, that the will was duly attested by three competent witnesses, and if the probate is conclusive, this incompetency can not be shown, as the plaintiff proposes, without controverting the probate of the will. The defendant attempts to show no incapacity, on the part of Mr. Buck, to take or hold the property devised, otherwise than by showing the incompetency of a witness, by which the will is made void, quoad hoc, and why? because the will is not properly executed. The incapacity, therefore, is not on the part of the devisee, to take, but on the part of the will, to convey.
    The probate is conclusive, that there is no such defect, and of course, the proof offered directly contradicts the word, and what is necessarily implied in the probate of the will.
    3. The language of the proviso, of the third section of the act relating to the settlement of estates, (ed. 1821, p. 199,) is clear and explicit, and well understood; and there is nothing in the proviso or body of the section, indicating any intention, on the part of the legislature, to use the words in a sense different from their ordinary import. The word “ heir,” in the proviso, as there inserted, is general, and applicable to any heir who becomes a subscribing witness to a will, containing a beneficial devise or bequest to himself; whereas a very different meaning is ascribed to the word, by this construction.
    There is no indication, either in the proviso or body of the section, that the proviso is elliptical, or that the legislature intended anything more by it, than the words naturally import, and if it were elliptical, then the words to be implied are such as to convey the meaning claimed. Allowing the construction claimed to be the true one, it is the province of the probate court, and not of the superior court, thus collaterally to settle the question, whether the interest of the subscribing witness was so neutralized.
   Church, C. J.

The plaintiff- is one of the heirs at law of Martha Bulkley, and claims that the premises in question descended to him, and other heirs of the deceased, among whom the defendant is one, as intestate estate, and he prefers his bill in equity, for a partition of the same among such heirs.

The defendant is in possession of the property in question, and claims exclusive title to it, as a devisee, under the will of the said Martha Bulkley. And the question is, did the premises in dispute pass to the defendant, under the will of the said Martha, or are they to be treated as intestate ?

It is found by the superior court, that the said Martha Bulkley died, seized, and that she made and published, in her life-time, an instrument, purporting to be her last will and testament, by which the land in controversy was devised to the defendant, in fee.

This instrument was duly presented to the court of probate, for the district of Hartford, for probate, on the nineteenth day of March, A. D. 1847, and was duly proved and approved, as the last will of the deceased. From this decree, the plaintiff and others, heirs at law of the deceased, appealed to the superior court, and, among the reasons assigned for the appeal, it was alleged, that the will was not subscribed by the testatrix, in the presence of three witnesses. The said Martha died on the sixteenth day of October, 1845.

The superior court found the reason thus assigned, and the other reasons for the appeal, untrue, affirmed the decree of the court of probate, and further decreed, that said instrument be established as a valid will. 1

It would seem, from this review of the proceedings, that the defendant had conclusively established his defence, and had proved a sole and exclusive title, in himself, to the disputed property.

But, in answer to this, the plaintiff claims, that, by the terms of the third section of the statute of 1838, (title Estates, chapter first,) in force when this will was executed, and when this testatrix died, although the will was well and legally executed, yet the defendant could take nothing by it,—that it was void as to him, because, as has been found by the superior court, his wife was one of the only three subscribing or attesting witnesses to the will.

The statute referred to enacts, that, if any beneficial devise, legacy or interest hath been or shall be made or given in any will or codicil, executed after the first day of January, 1808, to any person subscribing such will or codicil as a witness to the execution thereof, such devise, legacy or interest shall, as to such subscribing witness, and all persons claiming under him, be null and void, unless such will or codicil be otherwise duly witnessed, according to this act, and such person shall be admitted as a witness to such will or codicil, in the same manner'as if such devise, legacy or interest had not been given. Provided, such devise, legacy or interest be not made to an heir at law of the testator, &c. This statute, it will be noticed, by its terms, makes no provision for a. case where the wife of a devisee, &c., is a subscribing witness, as is done by the law now in force.

Upon what ground the court of probate and the superior court proceeded, in declaring this will to have been well executed, and that it was subscribed by the testatrix, in the presence of three witnesses, we do not know. It may be, that the fact, now found to be true, that Eunice Buck, the subscribing witness, was the wife of the defendant, was not brought to their notice; or, it may be, that they placed the case upon the same ground, as if the defendant himself had been the attesting witness, as the statute now in force does, and, therefore, considered the wife as a competent witness, on the supposition that the devise to her husband was void.

If the decision of this case required it, it would, in our judgment, present to ns a serious question, whether this will fell under the operation of the statute before recited, and whether the same legal consequences would follow, as if the defendant himself, the devisee, had been the attesting witness, instead of his wife?' Is the wife of a devisee to be taken as the devisee ?

That the wife was an interested subscribing witness, and incompetent to sustain the will, in favor of her husband, if objected to, while the probate of the will was under consideration, we can well see; but how a person, whether wife or not, can be treated as a devisee, to whom nothing is devised, where no statute so provides, is not so easily perceived, and especially in this state, where a wife has no present interest, no inchoate right of dower in the real estate of a living husband. 1 Jarman on Wills, 67.

However all this may be, we choose to consider this case, as if Buck, instead of his wife, had been the attesting witness. If he had been a stranger to the testatrix, in such case, instead of one of her heirs at law, the will would have been well executed, because of his incapacity to take under it, and of course, having no interest to sustain it. But the superior court has found that he was an heir at law of the testatrix.

We suppose this case comes before us in an aspect very different from that in which it would appear, if we were acting upon the question, whether the will was well executed ; or if it were now before us, for probate. In such case, we could not fail to see, that the defendant Buck, being a devisee, was so interested, that the will would be void, for want of the necessary number of competent witnesses. But, at this time, and after the will has been fully proved and established, by the only competent tribunals which can decide upon its validity, we can have nothing to do with the question, how far the defendant was an interested or an incompetent witness to the will. We are acting under ah established will, and the question before us, as a majority of us believe, is, whether this defendant, under the facts before us, can take the portion devised to him by the will. If he was not an heir at law of the testatrix, he could not take, as the clear enactment of the recited section of the statute declares, in general terms, that a devise, legacy or interest, given to a subscribing witness to the will, shall be null and void.

The defendant would be embraced by this enactment, were it not for the proviso of the same section, which, with equal clearness of language, excepts, from the operation of this law of forfeiture, all devises, &e., made to an heir at law of the testator.

We do not feel at liberty to indulge in any fancied construction of this law. The obvious meaning of the language leads to the conclusion, that the proviso qualifies the entire enactment, and in effect declares, that although, in all other cases, where a devisee shall be a subscribing witness, the devise shall be void, and the devisee shall be incapable of taking under the will, yet this shall not extend to an heir at law of the testator, standing in the same position. At least, if this is not the meaning of the language used, we know not what it is.

Nor can the legislation of other states on the same subject, to which we have been referred, aid us in the construction of this, or any other law of our own: we, as a court, can only know the meaning of a law, by the language of the law, and the subject matter of it, connected with our own legislation, or common law, upon the same subject.

Aside from the natural import of the language, used in the statute under consideration, which we have regarded as imperative upon us, in its construction, we might suggest plausible reasons, leading to the same result, drawn from the probable intention of the legislature.

We are led to the result, therefore, from the views we have taken of the facts and the law of this case, that the defendant, being an heir at law of the testator, is not, by statute, disqualified from taking under this will, and as the will has been legally established, it has vested in the defendant a title to the land in controversy, as testate estate. And, therefore, a majority of the court unites in advising the superior court, that, upon the facts, the premises are testate estate, and that the plaintiff's bill ought to be dismissed.

In this opinion, Waite and Ellsworth, J’s, concurred.

Storrs, and Hinman, J’s,

dissented. They were of opinion, 1. That, by the just construction of the third section of our statute of wills, as it existed at the time of the making of the will of Martha Bulkley, the “ heir at law of the testator,” mentioned in the proviso therein, meant only such an heir as would have inherited what was devised or bequeathed to him by the will, and to whom, therefore, it was indifferent, whether he took it by the devise, or by inheritance. 2. That a devise or bequest to the husband or wife of a witness to a will, is equally void, as if it were made to the witness. Clark v. Hoskins, 6 Conn. R., 106. Jackson v. Woods, 1 Johns. Cas., 163. Jackson v. Durland, 2 Johns. Cas., 314. Winslow v. Kimball, 25 Maine R., 493. 3. That the plaintiff is not precluded in this ease, by the probate of the will, from denying the validity of the devise to him, of the land sought to be aparted, (in which Church, C. J., concurred,) and that, therefore, evidence, to prove that one of the witnesses to the will was his wife, was admissible. Hardfell v. Witherill, 18 Jurist, 233. Gingell v. Horne, 9 Sim., 339. Segrave v. Kinvan, 1 Beat., 157. Wilford v. Bulkley, 2 Cl. & Fin., 102. 8 Bligh, N. S., 111. 3 Miller’s Lou. R., 170, 175. 4. That, as such devise gave to the plaintiff the whole of said land, and, as heir of the testator, he would inherit a less proportion of it, the devise was rendered void by such third section of the statute, and the land thereby given is intestate, and that'the plaintiff is therefore entitled to have it aparted between himself and the defendants, the other heirs of the testator.

Bill dismissed.

       23 Little & Brown’s Law & Eq. Hep., 132.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    The Pearl Street Congregational Society vs. Imlay.
    While it is a general principle, that a discharge, by a creditor, of securities for a debt held by him, without the consent of the surety for such debt, discharges the surety, to the extent of the value of the securities, yet, a creditor may have taken such securities, under an arrangement with the debtor, which binds him, in good faith, to discharge them.
    A discharge by a creditor, of securities so held, without notice to the surety, and after the bankruptcy of the debtor, does not necessarily discharge the surety.
    Where a creditor, after the failure of the surety, who was an accommodation endorser of a negotiable note, not then due, applied to the maker of the note, for further security,—who thereupon made a mortgage of real estate sufficient to secure the debt, upon the parol condition that the creditor should release the mortgaged premises, upon the debtor’s providing other satisfactory security, soon after which the debtor became bankrupt,—and some months after, and before said note became due, the creditor accepted, as security, an endorsement of said note, by a responsible person, under the name of the original surety, and thereupon, without notice to the original surety, released said mortgaged premises,—the fact that such mortgage had been taken, and was held by the creditor, having been known to said surety, but said agreement to discharge the samo being wholly unknown to him ; it was held, in a suit by the creditor, against such original surety, on the note so endorsed, that the above facts constituted no valid defence.
    This was • an appeal from the doings of the commissioners, on the estate assigned by William H. Imlay, for the benefit of his creditors, allowing a claim against said estate, in favor of the Pearl street Congregational society of Hartford. The cause was submitted to the superior court, at the term holden in January, 1854, on the following agreed statement of facts, and was reserved for the advice of this court.
    On the first day of June, 1851, Joseph Wales purchased of the Pearl street Congregational society, a lot of land, in the city of Hartford, for $-, and by the terms of sale, he was to bring a good endorsed note for the price, payable in one year. He proposed to said society, to get a note endorsed by said Imlay, which said society agreed to accept.
    Said Wales immediately procured and delivered to said society a note, for the sum of $1,645.83, dated June 10th, 1851, executed by himself, payable to said Imlay, and by said Imlay endorsed in blank, payable in one year from date, at the Connecticut River bank. The amount of said note was the price of said land, with one year’s interest included.
    Said Imlay endorsed said note wholly for the accommodation of said Wales, as his surety, and without security, but said society had no knowledge on the subject, except what is to be inferred from the foregoing facts.
    ■ Said Imlay failed, on the 9th day of October, 1851, and said Pearl street society required of said Wales further security on said note, and said Wales thereupon gave them, for that purpose, a mortgage of said lot, including a brick dwelling-house, which had shortly before been erected thereon. Said mortgage was given by said Wales, without consulting said Imlay, who, at the time, had no knowledge of the fact, though it became known to him immediately thereafter.
    At the time said mortgage was taken, there was a mechanic’s lien on the premises, for about $2,500.
    Said Wales was then negotiating with the society for savings, for a loan of that amount, on the security of said premises, for the purpose of paying off' said lien.
    This fact was communicated to said Pearl street society, at the time said mortgage was given, and it was agreed by them, that if said Wales could obtain said loan, at said savings society, and would provide other satisfactory security, in the place of said mortgage, they would release the same.
    None of these facts were, however, known to said Imlay, either then, or at any time afterward.
    There was no other incumbrance on said property, except said lien, and said premises were of the value of $6,000.
    Before said note fell due, to wit, on or about the first day of January, 1852, said society released said premises to said Wales, who, on the same day, mortgaged the same to said savings society, for $2,500, and also, on the same day, conyeyed away to Elizabeth Wells, all his' remaining interest in said premises; and said Wales, previously to the release of said mortgage, by said Pearl street society, and after said mortgage had been given to said Pearl street society, became insolvent, and left the state, and has not since had any visible property within this state.
    Said release was given to said Wales, by said Pearl street society, wholly without the consent or knowledge of said Imlay, and said Imlay had no knowledge of the fact, until he discovered it from the town records, some days after.
    At the time of releasing said mortgage, said Pearl street society accepted, as security upon said note, the endorsement of George M. Welch, who endorsed the same, by writing his name under that of said Imlay, on the back of said note.

      Said Welch was a person of responsibility, but endorsed said note, supposing said Imlay to be liable, as a prior endorser on said note. Said Imlay had no knowledge of said Welch’s endorsement.
    When said note became due, demand was legally made upon said Wales, for payment of the same, and notice of non-payment was duly given to said Imlay and said Welch, and said note was, in the usual form, protested for non-payment, and has never been paid.
    Said Imlay claimed to-be discharged from his liability, as surety upon said note, upon the foregoing facts.

      Robinson and Welch, with whom was N Shipman, for the Pearl street society, contended,
    1. That the doctrine of equity jurisprudence, which dis-, charges the surety, when the creditor releases the securities to which the surety might otherwise have resorted for indemnity, is not to be applied inflexibly, either in courts of chancery or law, but its application must conform to the demands of practical equity. 1 Alabama, N. S., 23. U. S. Eq. Dig., p. 602, § 170. See also cases cited below.

      (a) The rule is founded upon the idea of a constructive fraud on the part of the creditor, in abandoning the security, but this implication of fraud may be repelled, by the circumstances of the transaction. 13 Metc., 187 (192.) It is not fraudulent to substitute one security for another, nor can a surety plead such substitution, as a discharge of his liability. U. S. Eq. Dig., p. 602, § 164. Neff’s Appeal. 9 Serg. & Watts, 36.

      (b) In the present case, if Imlay ever had any rights whatever, in respect to the securities in question, (which is denied,) a court of equity would make Welch’s endorsement available to him, by an act of subrogation.
    2. The security was taken under such circumstances, that the creditor had a right to release it, without affecting the obligation of the surety.

      (a) It was obtained by the creditor’s active diligence, and it is well settled, that such securities may be released, without discharging the surety. 12 Mass., 503. Baker v. Marshall, 16 Verm., 522. Chitty on Bills, 147, (a) (n.) Bellows v. Lovell, 4 Pick., 153. Montpelier Bank v. Dimon, 4 Verm., 599. Am. Leading Cases, 257, 258, 259. This rule is not confined to securities obtained by legal process. 13 Metc., 187.

      (b) It was taken only on account of a change in the circumstances of the surety himself, and as a guaranty against his default; and he had no right to regard it as obtained for his benefit, or to complain of its surrender. If it had been a mortgage, conditioned on Imlay’s resuming payment, he could hardly have laid claim to it, as a security to which he was equitably entitled for his indemnity.
    (c) It was a conditional security only, and, as the condition had been fulfilled by the debtor, the release was required by good faith, and was the mere discharge of a legal obligation. The security could not be more beneficial to the surety than to the creditor, and the former can not complain, that the terms on which it was received compelled its surrender, before it became available to him.

      Hooker, for William H. Imlay, contended,
    1. That there is nothing, in the fact, that this mortgage was taken after the note was endorsed, that it was procured without the knowledge of the surety, and by the diligence of the creditor, and that it was taken on account of the failure of the surety., that can deliver the case from the application of the well-established principle, that a discharge, by the creditor, of securities held by him, without the consent of the surety, discharges the surety, to the extent of the value of the securities. 8 Pick., 122, 129. 2 Swanston, 199. 1 Sto. Eq., § 326. 257, et seq. Story on Contracts, § 872. 8 Serg. & Rawle, 457. 2 Am. Leading Cases.

      2. That the only fact, which can raise a serious question in the case, is, that the mortgage was given, under an agreement of the society to release it, on other security being substituted. This fact ought not to deliver the case from the application of the general principle stated above.
    1. This agreement is inadmissible in evidence, because parol.-

    [By the statement of facts, all matters inadmissible in evidence are to be excluded, by the court.]

      (a) Being parol, it can not affect real estate. It was an agreement to convey land.

      (b) Being made before the mortgage was given, it is inadmissible for the purpose of varying the written contract.
    The written contract was a conveyance of land, defeasible only by payment of the note.
    2. This agreement ought not to affect us, because we had no notice of it. The records not only did not' show it, but really showed the contrary. We have thereby been lulled into a false security.
    3. This agreement, even if valid, did not. authorize the release of the mortgage, upon the security substituted by Wales. The security substituted, was of no value to us, Welch’s endorsement being under purs. The agreement required other satisfactory security to be given. The society had no right to accept, as satisfactory, such security. They had no right to look out for their own interest only, wholly regardless of ours. “A creditor, holding collateral security, is bound to use it impartially and justly, for the benefit of the surety, as well as himself. 6 Smedes & Marshall, 24. 4 Johns. Cha., 129. 8 Pick., 122, 129. 1 Sto. Eq., § 324. 2 Am. Leading Cases, 261, 262. 4 Met,, 176, 177.
    ' 4. The failure of Wales, in the mean timé, created a new state of facts, which made it specially incumbent on the society, to make no change of the securities, which would injure Imlay.
   Ellsworth, J.

We do not think it is necessary to comment upon the numerous cases which have been read, illustrating and enforcing the principle of equity, equally well settled in England and here, that any security which’ has been appropriated by the debtor, to secure his debt, whether it be placed in the hands of the creditor or the surety, shall be made available for the debt and for his benefit, who is forced to pay it. It is treated as a fund, set apart for that purpose. The principle itself is founded in the highest justice and wisdom, while, in applying it to cases, as they arise, there are distinctions and circumstances, that must be observed, as essentially belonging to the principle itself.

Nothing can be more obvious, than that, if the creditor will insist upon collecting his debt out of the surety or endorser, while he has the property of the debtor in his hands, he shall make over that property to him who pays the debt, that it may be applied, as it ought to be, to relieve and indemnify the surety.

Now, if this were all, if Wales had merely given his creditors additional security, the surety might justly insist upon having the benefit of it, as claimed, but there is much more than that here. There is a controlling circumstance, bearing strongly upon the supposed equity, set up by Mr. Imlay. Mr. Wales did not appropriate the security unconditionally, to secure his debt, but he merely made an arrangement for temporary relief, in the particular emergency. He did what he was under no obligation to do. -Mr. Imlay had suspended payment; the society had expressed their dissatisfaction with the security, and Mr. Wales agreed to give them the mortgage in question, for a short time, until he could procure a satisfactory name. He, and the society, stipulated that the mortgage should be released, in order that he might mortgage the property to the savings society, to raise money to pay off the mechanic’s lien. Mr. Imlay had nothing to do with this private arrangement, nor had he knowledge of it, nor did he become surety, in consequence of it, nor did he notify the society to retain the security, for his benefit. He had, in fact, no connection with it, further than what the law created, which, under the circumstances, we hold, did not create a right of subrogation or substitution. When Mr. Wales gave the society a satisfactory name, they were absolutely bound to release the mortgage, as they agreed, and he could and in fact, did, in good faith, mortgage anew. We do not mean to say, that a surety can not claim a right to property, appropriated by the debtor, unless he had knowledge of it at the time, or gave notice to have it kept for him, or became surety expressly upon the faith of the appropriation. This may not be necessary, but in this case, a different principle applies, which must control us, as we have endeavored to show, steering clear of all these questions.

It is objected, that the contract between Mr. Wales and the society was in parol and could not be proved. Not so. Even if the evidence is obnoxious to the statute of frauds, which we do not decide, the society, in justification of their act, can show the agreement, and their good faith, in performing it. Besides, the statute only says, “ no action shall be brought,” &c., and not that the contract is absolutely void. Moreover, it is executed, and this is conclusive.

We advise judgment for the plaintiffs.

In this opinion the other judges concurred.

Judgment for the plaintiff.


author: Church, C. J.

text:
    Lucas vs. The State.
    The statute of 1849, repealed so much of the Revised Statutes, (tit. i., ch. 1, § 141,) as authorized a party to any criminal proceeding, to testify regarding the same.
    In a criminal prosecution, the wife of the accused is not a competent witness in his behalf.
    This was an information, brought to the county court, against Charles H. Lucas, for placing obstructions upon the Middletown branch of the Hartford and New Haven railroad, and for taking up and removing certain parts of the superstructure of said road.
    The defendant pleaded not guilty; and upon the trial before the jury, the attorney for the state claimed to have proved the guilt of the defendant, by two witnesses.
    For the purpose of contradicting said witnesses, and as conducing to prove his innocence, the accused offered the testimony of his wife; to the admission of which, the attorney for the state objected, on the ground that, being the wife of the accused, she could not be admitted to testify. The court sustained the objection, and rejected the evidence.
    -. The defendant thereupon filed a bill of exceptions, and, bv motion in error, brought his case before the superior court, where the judgment of the county court was affirmed, and thereupon, by motion in error, the cause came to this court.

      T. C. Perkins and Robinson, for the plaintiff in error, contended,
    1. That, by the statute of 1848, the wife could testify, in criminal cases, for her husband, and that the act of 1849 did not exclude her from this right.
    2. That the statute does not exclude the wife, as a witness, unless she is a “ party ” to the proceeding, and she is neither a party, in common parlance, or technically. 4 Pick., 411. 4 Verm., 116. 10 Eng. Law & Eq., 455.
    3. That the construction of the statute, claimed by the plaintiff, accords best with recent decisions, which incline to allow objections to go rather to credibility, than competency, of evidence, and also with our legislative enactments. Stat. 1849, p. 86.
    4. That the wife is not excluded, as a witness for her husband, on grounds of public policy. 20 Conn. R., 363.

      R. D. Hubbard, for the state, contended,
    1. That the wife is treated, in the text-books on evidence, not as a witness, disqualified by interest, but as a party. 1 Greenl. Ev., 334.
    2. That it is a fundamental principle of the common law, that the wife shall be disqualified, wherever the husband is a party, and vice versa. 2 Stark. Ev., 550. To such an extent is this principle carried, that it is universally held, that, by common law, a husband cannot be a witness, where the wife’s separate estate is concerned. Davis v. Dinwoody, 4 T. R., 678. Greenl. Ev., 341, 334.
    3. Every consideration of public policy, which forbids the husband from testifying for himself, in a criminal cause, would also forbid the wife from testifying for, or against, him. Such is the case, if the repealing act has respect, 1, to the interests of the accused, or 2, to the interests of public justice.
    4. The construction, now contended for, was put on the repealing act, by this court, in Merriam v. H. & N. H. R. R. Co., 20 Conn. R., 354.
   Church, C. J.

The bill of exceptions, in this case, presents the question, whether, in a criminal prosecution, the wife of the accused may be admitted as a witness, to testify in his behalf?

Before the great innovation upon the law of evidence was made, in this state, by the statute of 1848, it is conceded, that, by the common law, and our own practice, the wife could not testify for her husband, either in civil, or criminal cases, where he could not testify for himself. This was but the necessary result of the salutary common law doctrine, that the husband and wife were.but one person, or party; a doctrine, although somewhat obscured in modern times, yet not entirely repudiated, as a legal maxim. The wife was considered as having a legal identity with her husband, in most respects, where such a principle would not lead to practical injustice, as it might affect her person or estate. Chiefly, on the ground of this intimate union, or identity, it was, that the husband and the wife were excluded from testifying, on behalf of each other. 1 Ph. Ev., 77. 1 Greenl. Ev., 384. 1 Sw. Dig., 18.

The 141st section of the revised statute for the regulation of civil actions, passed in 1848, enacted that “ no person should be disqualified, as a witness, in any proceeding at law, or equity, by reason of his interest in the event of the same, as a party, or otherwise.” This was adjudged to extend as well to proceedings in criminal, as in civil cases; and accused parties on trial, as well as their wives, were admitted to testify for each other. This, upon experiment, was found to result rather to.the injury of, than to afford a privilege to, persons charged with crime. And, therefore, by the statute of 1849, so much of the foregoing section, as authorized a party to any criminal proceeding to testify regarding the same, was repealed.

We suppose, the effect of this repeal is, to restore the common law, in its operation upon the admissibility of parties, as witnesses, in criminal prosecutions, as it was previous to the statute of 1848, in all respects. And, of course, husbands and wives sustain the same relation to each other, now as before, with the same capacities and incapacities, as interested parties.

We are of opinion, therefore, that there is no error in the judgment of the superior court.

In this opinion the other judges concurred, except Stokes, J., who tried the cause in the court below, and was disqualified.

Judgment affirmed.


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    Miller vs. Welles.
    The plaintiff brought her hill in equity, alleging, that she delivered to the defendant $3,000, upon the special trust and confidence, that he should account to her therefor, on demand; that she delivered said money to him, upon the understanding, that he was to invest the same and account therefor, as her agent and trustee; and further alleging, in detail, a breach of such trust and confidence, and fraud of the defendant, in obtaining said money. The cause was referred to a committee, who, in support of the allegations of fraud, found, that the parties were neighbors, that the plaintiff was a woman, and the defendant a man of intelligence, and such other facts only as would tend to sustain an action at law against the defendant, for false and fraudulent representations; but did not find, that any peculiar relation, from which fraud could be inferred, existed between them, and further found, that no fraud or fraudulent intent existed, unless the same was inferrible from the facts found by them, and that there was no trust, other than such as the law would imply from said facts. Held, 1. That it is an established principle of the common law, that where both fraud and damage concur, the law will give relief. 2. That disputable presumptions of law may be rebutted by proof, and that, when evidence has once been admitted, for that purpose, they are resolved into questions of fact. 3. That courts of equity will, for reasons of public policy, often infer fraud, from the existence of certain relations; as, from that between parent and child, guardian and ward, attorney and client, when the confiding party has suffered in a bargain, without looking for the proof of positive fraud; yet it will not do so, from that exist- • ing between neighbors, acquaintances and friends. 4. That the facts, found by the committee, laid no foundation for the interference of a court of equity.
    Nancy Miller brought her bill in chancery, to the superior court, against Thaddeus Welles, alleging that, on or about the-day of-, she delivered to the defendant three thousand dollars, her own proper moneys, upon the special trust and confidence that the defendant should account to her therefor, on demand; that the defendant received said moneys upon such trust and confidence, and so to account therefor. Also alleging, that, if the court should be of the opinion, that if the defendant did not so receive the said moneys, and the same were not delivered to him by the plaintiff, to be accounted for in manner aforesaid, yet the same were, on or about the-day of October, 1847, delivered to him by the plaintiff, upon the special trust and confidence that he, as trustee and agent of the plaintiff, should safely, securely, and in good faith, invest the same at interest, in good, sufficient, and proper securities, for the benefit and on account of the plaintiff, and that the defendant received said moneys, upon such special trust and confidence, and upon the understanding, that he was so to invest said moneys, as the trustee and agent of the plaintiff, and in good faith, and to account therefor, as such trustee and agent.
    Said bill then proceeded to charge, in detail, a breach of such trust and confidence, and fraud of the defendant, in obtaining the money, and prayed for a disclosure by the defendant. The defendant having filed his answer to the bill, the court appointed a committee, to find the facts in the case, who made their report, substantially as follows.
    The plaintiff and defendant were both residents of the town of Glastenbury, and county of Hartford. On the 13th day of October, 1847, the plaintiff’, being then the owner of a farm in said town, and having negotiated the sale of the same to one Richards, went, in company with him, to the house of the defendant, who was then town-clerk of Glastenbury, for the purpose of completing the sale of said farm.
    The deed, being drawn by the defendant, was then executed, and delivered, by the plaintiff', to Richards, who paid over the purchase money, in cash, amounting to three thousand dollars. The defendant counted the money at Richards’s request, when some conversation ensued between the parties, as to what the plaintiff would do with the money, in the course of which, she asked the defendant if he did not want it; to which he answered that he did not. She said that she wished he would take it, and upon his further refusal, enquired of him, if he knew any one that did want it, or would take it. He at first replied that he did not think of any one, but soon suggested the Eagle manufacturing company, a corporation located in Glastenbury, saying that that company sometimes borrowed money.

      The defendant made no representations or statements respecting the credit or solvency of said company, other than to mention it as a borrower, in reply to the enquiry of the plaintiff; but the plaintiff, upon such suggestion, and in consequence of the same, determined to lend the money to said company; and thereupon said to the defendant, that she. wished he would keep the money, and see the company, and if they wanted it, to let them have it, and to take their note. The defendant answered, that he should see the agent in a few days, and would do the errand, and that, if they wanted the money, they would come or send after it. The defendant then desired her to take the money, but she urged him to keep it for her, which he at first declined to do, saying that he did not want so much money in his house, and would not be responsible for it; but he at length consented to take the money, and in fact kept the same in his possession, until loaned to said company.
    On the 19th of said October, the defendant, acting in pursuance of the direction of the plaintiff, loaned said money to said company, and Samuel H. Huntington, the agent of said company, received the same, and thereupon executed two notes for the same, in the name of the company, to the plaintiff, one payable in one year from date, and the other on demand, which notes the defendant took into his possession, and in a few days thereafter, called with them upon the plaintiff, and exhibited them to her, for the purpose of enabling her to choose which of them she would take. She chose the note payable on demand, and took the same. The note so taken is the same recited in the bill, and is in the words and figures following, viz.:

      “ $>3,000. Glastenbuey, Oct. 19th, 1847.
    “ For value received, the Eagle manufacturing company promise to pay to the order of Nancy Miller, three thousand dollars on demand with interest.
    “ SAM’L H. HUNTINGTON, agent.”

      The plaintiff still continued to hold said note, which was wholly unpaid, either by the said company or by the defendant, and it was not possible to collect the same, from said company.
    It does not appear, that there was any agreement or understanding, for the payment of any compensation to the •defendant, for his services, in effecting said loan to said company.
    On the 13th of October, 1847, and for a considerable period before that time, said company was and had been deeply insolvent, and on the 9th day of March, 1848, became openly insolvent and failed, and has ever since so remained.
    Shortly preceding its failure, said company executed sundry conveyances and mortgages to secure certain creditors, guarantors, and endorsers, including a mortgage to the plaintiff to secure her said note, which mortgage was executed without her knowledge, by the procurement of the defendant, and was the only security taken by him, or which the plaintiff ever had for her loan. Said mortgage was of no value whatever, in consequence of the priority of said other mortgages, and said conveyances and mortgages embraced all the effects and means of payment of said company, which has ever since ceased to have any property or effects, or to transact any business.
    Neither at the time when said money was left with the defendant, nor when the plaintiff took said note, nor at any time prior to said failure, did it appear that the plaintiff had any knowledge of the circumstances or situation of said company, or had any reason to doubt its credit or solvency.
    On said 19th day of October, 1847, the defendant was a stockholder, a director, and the president, of said company, and so continued, until the time of its failure, and ever since; he had been a stockholder, at least as early as the year 1834, a director since the same year, and president since the year 1835. But it did not appear that the defendant, as president, ever received any compensation, or was ever charged with, or considered responsible for, any special duties, either connected with the financial affairs, or with the manufacturing or other business of said company, or that he had, as such, any special means of information as to its affairs, more than any other director. During all said period, there was a general agent of said company, having the general charge of its affairs, and acting independently of the president.
    On said 13th day of October, and for more than one year prior thereto, there were and ever since had been but four stockholders of said company, each of whom had an equal interest and owned one-fourth part of the capital stock, viz.: the defendant, who was the president; his brother, Gideon Welles, of Hartford; Samuel H. Huntington, of Hartford, who was- the secretary, treasurer and general agent, and David S. Treat, of Glastenbury, who sometimes acted as book-keeper, and who also had charge, as foreman or superintendent, of the manufacturing operations of the company. The defendant, and said Huntington and Treat, were the directors of the company. When said money was left with the defendant, he was imperfectly acquainted with the condition and affairs of the company, although he had been in the habit of frequently visiting their factory and store, and had attended the meetings of the company, and of the directors. He did not then know or suppose said company to be insolvent, although he did know it to be then, and for a long time before, largely indebted, and that for several years preceding, there had been difficulty in carrying on its business, for want of sufficient capital, and it had paid no dividends since the year 1837; but at said times the defendant believed and expected that said company would ultimately extricate itself from said embarrassments, and become prosperous.
    At the time said money was left with the defendant, the following facts connected with the situation of said company, were known to the defendant, but were not at any time communicated, by him, to the plaintiff.

      1. In January, 1845, Frary Hale, who had been a stockholder, director, and general agent, of the company, in pursuance of an agreement with the company, transferred to them all his stock, being eigbty-nine shares, the par value of which was 8,900 dollars, in consideration of certain real estate then conveyed to him by the company, valued at about 2,000 dollars, and for which, in addition to said stock, he paid the company between three and four hundred dollars.
    2. On the 31st day of August, 1846, the defendant and said Gideon Welles, Samuel H. Huntington and David S. Treat, being then the sole owners of the stock of said company, and owning the same in the following proportions, viz., the defendant 53 shares; Gideon Welles, 48 shares; Samuel H. Huntington, 162 shares; and David S. Treat, 52 shares; made and entered into the following agreement:
    “Whereas we, the subscribers, are the owners of all the stock of the Eagle Manufacturing Company, each of us owning shares as follows, viz. .*
    “ Gideon Welles, forty-eight shares.
    “ Thaddeus Welles, fifty-three shares.
    “ David S. Treat, fifty-two shares.
    “ Samuel H. Huntington, one hundred and sixty-two shares.
    “And whereas said company is embarrassed in its pecuniary condition, owing about seventeen thousand dollars, accommodation paper, at the Hartford Bank, and having a large amount of other outstanding debts; now therefore, with a view of relieving said -company from its embarrassments, especially by reducing the amount of its accommodation paper, we the said stockholders do hereby covenant and agree,, each with the others, and each considering the promise and agreement of the others a consideration for his own, that they will,
    “ I. Reduce the number of the shares of stock to two hundred.
    “ II. That each stockholder shall become the owner of fifty shares—the said Treat agrees to transfer two shares to the said Gideon Welles, and the said Thaddeus Welles, and the said Huntington, agree to transfer to said company, the surplus over and above fifty shares each, owned by them, which surplus shall be considered as cancelled, unless the company shall hereafter be disposed to sell a portion of the same, not exceeding one hundred shares, at such price as said company may fix upon the same.
    “ III. That said stockholders, the subscribers hereunto, will, and do hereby assess themselves to the amount of fifty per cent, on the par value of said fifty shares of stock, owned by each, being two thousand five hundred dollars, to each stockholder, and they do hereby individually promise and engage, in consideration of the promises, to pay said sum, so assessed to each of them, into the treasury of said company, for the purpose herein before specified, in cash, with interest from the date hereof, on or before the first day of January, A. D. 1847. ' •
    “ Dated at Hartford, this 31st day of August, A. D. 1846.”
    It did not appear whether the transfers of stock therein stipulated to be made were ever, in point of fact, made, but after the execution of said instrument the several parties mutually regarded each other as equal owners of the capital stock of the company.
    3. During the year preceding said loan, on several occasions the workmen and other creditors of said company were not paid promptly, and complaints of such want of promptness came to the knowledge of the defendant.
    4. On the 13th and 19th days of October, 1847, said company was indebted to the defendant, and said Huntington, by their note for ten thousand dollars, and to the defendant alone, by their three notes for $1,781.55, $301.92,. and $157.85, and also by book in the sum of $2,937, and they "held the note of the defendant for $2,500, being his part of the sum of ten thousand dollars, mentioned in the agreement aforesaid.
    5. To carry op the business of the company, large bank accommodations and other loans were necessary, and the defendant and said Huntington had been for some years, in the habit of endorsing the company paper, and on said 13th and 19th of October, a large amount of paper was outstanding at the Hartford Bank and elsewhere, for which the defendant was responsible, as endorser or guarantor.
    6. At. a meeting of said company, on the 7th of June, 1847, it was voted to raise ten thousand dollars by loan, for the use of the company, and also voted, that to effect said loan, the president be authorized and directed to execute, to the defendant and Samuel H. Huntington, the company’s note for the sum of ten thousand dollars, payable on demand, and also to execute a proper mortgage of any, or all the real estate and fixed machinery belonging to the company, to said Welles and Huntington, as collateral security for said note. In pursuance of said vote, the defendant and said Huntington soon after procured, and lent to said company, said sum of ten thousand dollars, and took the company note for that amount; but no mortgage was executed by said company, in pursuance of said vote, to secure said note, until the 27th day of November, 1847, when a mortgage of that date was executed for that purpose.
    The three thousand dollars, so borrowed of the plaintiff by said company, except fifty dollars, which was received by said Treat, and applied to the payment of workmen, was deposited by said Huntington, as agent of the company, in the Hartford Bank, with other funds of the company, and afterward drawn out and applied by said agent, for the benefit of the company, without any specific knowledge or direction of the defendant.
    The committee found, that no confidence or trust was reposed by the plaintiff in the defendant, as her trustee or agent, other than such as the law would imply, from the facts found by them. Also, that there was no actual fraud or fraudulent intent on the part of the defendant in procuring said money from the plaintiff, or in effecting the loan of the same to the company, and no fraud whatever, unless the same may be implied by law from the facts found.
    The question, as to what decree should be passed in the case, was reserved, by the superior court, for the advice of this court.

      Welles and Fellowes, for the plaintiff, after remarking that the case proceeded on the ground of fraud, contended,
    1. That the facts, found by the committee, show a confidential relation of the parties, who did not stand to each other in the relation of borrower and lender merely, each treating and acting for himself, but that the defendant was a borrower in the guise of a confidential adviser, and that the law, from those facts, implies fraud. That the defendant was not to receive reward makes no difference. His consenting to act was a sufficient consideration to support the implied promise to act faithfully. Elsee v. Gatward, 5 Term R., 148. 1 Story’s Eq., p. 325, §§ 307-323 inclusive. Fox v. Mackreth, 2 Cox, 323. Gibson v. Jeyes, 6 Ves., 278. Taylor v. Obee, 3 Price, 301. Welles v. Middleton, 1 Cox., 122. Hunter v. Atkyns, 3 M. & Keen, 113.
    2. That the report shows fraud arising from misrepresentation, or the suggestio falsi. The plaintiff’s inquiries, addressed to the defendant, were obviously inquiries as to the safe and proper investment of her money, with the most entire confidence in the prudence and honesty of his answers. He was not bound to answer. But consenting to answer, he was bound to answer truly, and with all that care and caution which a party, undertaking to advise another in a matter of such moment, is bound to observe. Whether the defendant’s answer was with, or without knowledge, it comes within the true idea of a legal suggestio falsi. 1 Story’s Eq., p. 216, § 191, § 192, § 193, § 196, § 197, p. 411, § 384. Broderick v. Broderick, 1 P. Wms., 240. Evans v. Bicknell, 6 Ves., 182, 183. Pidcock v. Bishop, 3 Barn. & Cress., 605, (10 E. C. L., 197.) Bacon v. Bronson, 7 Johns. Ch., 194. Bur

      rows v. Lock, 10 Ves., 474. Pearson v. Morgan, 2 Bro. Ch. R., 389.
    3. That the report shows fraud, arising from concealment, or the suppressio veri. A variety of facts are found by the committee, showing that the Eagle company was not a safe borrower, which were unknown to the plaintiff, were known to the defendant, and which he suppressed ; but knowing which, he was bound to disclose. This obligation arose from his accepting the confidence and consenting to answer the inquiry addressed to him. It also arose from his interest in the transaction, growing out of his relations to the company. He was in fact a party to the transaction, by which the money was obtained, and, on this ground, bound to disclose. The facts concealed were also such as, if disclosed, would have induced the plaintiff to avoid the company, as borrowers of her money. Walker v. Symonds, 3 Swanst. R., 62; referred to in 1 Story’s Eq., p. 241, note. McCormick v. Malin, 5 Blackford, 509. Joyce v. Taylor, 6 Gill & Johnson, 54.
    4. Fraud arising from a violation of the policy of the law. The policy of the law is, that the credit of corporations shall be based upon capital, set apart for the safety of persons dealing with them. It is also the policy of the law, that the officers of corporations shall protect the public, by carrying on the business upon the faith of that capital. The company had ceased to have any capital, and the officers were carrying it on upon fictitious capital, which was a fraud upon the public, for the aiding to accomplish which, this money was obtained. To protect himself, the defendant sets up, that he delivered the money to the company, by the direction of the plaintiff. That direction having been procured by him, in furtherance of this general fraud, he is estopped from such a defence. 1 Story’s Eq., p. 310, § 293, § 294, § 295, § 297, § 298, note; p. 356, § 333, § 349, § 380. Chesterfield v. Jansen, 2 Ves. Sen., 156, 157.
    5. That the defendant is, consequently, a trustee of the money and accountable to the plaintiff. Whenever a party obtains property tortiously, he is considered, in equity, as a trustee for the injured party, and accountable. 1 Story’s Eq., p. 502, § 460, § 463, § 464, § 467. Callender v. Colegrove, 17 Conn. R., 1. Story on Bailments, p. 112, § 157, § 158, § 159, § 170, § 191. As to the interest, see § 194.
    6. That the plaintiff’s remedy is in equity. Equity can presume fraud, but at law it must be proved. Law is bound by forms, but equity can search into the substance, and can shape the relief to the infinite varieties of fraud. Hence, equity has a concurrent jurisdiction with law, in cases of fraud. The object of this bill is to set aside the fraudulent claim of the defendant, that he acted in pursuance of the plaintiff’s direction. The bill seeks a discovery in matters material to the casé. For this reason, also, equity has jurisdiction. Having taken jurisdiction to grant the discovery, it will also grant the relief. Gallatian v. Cunningham, 8 Cow., 370. Chesterfield v. Jansen, 2 Ves. Sen., 156. Fullagar v. Clark, 18 Ves., 482. Denton v. M’Kenzie, 1 Desau., 300. 1 Story’s Eq., § 455, § 456, § 464, § 467. Lewin on Trustees, p. 321, note.

      Hwngerford and Bulkeley, contra, contended,
    1. That no facts are found by the committee from which the law can imply fraud, or any other ground of relief. The report entirely negatives any actual or intentional fraud, on the part of the defendant, and any relation between the parties out of which a constructive fraud could grow.
    2. That the facts found by the committee to have been known to the defendant, and not to the plaintiff, nor communicated to him at the time the money was received and loaned, were all adduced and are to be considered and deemed merely as evidence tending to prove the defendant’s knowledge of the insolvency of the company, and a fraudulent intent, or actual fraud on his part, in so receiving and loaning the money; both of which facts are expressly negatived by the finding.
    3. That unless the facts so found, constitute a fraud per se, they can be of no avail to the plaintiff', inasmuch as, if they are to be considered in the light of evidence merely, the committee and court have negatived the inference they were intended to support.
   Church, C. J.

If, from the facts found and reported by the committee in this case, we can discover nothing more than such as would sustain an action at law against the respondent, for false and fraudulent representations of the credit and solvency of the Eagle Manufacturing Company, whereby the plaintiff was induced to loan them the money, and take the note described in her bill, we should not find enough to sustain this application in equity, as the remedy at law would be entirely adequate. It is an ancient principle of the common law, that where both fraud and damage concur, the law will give relief; a principle which has since been very fully recognized, modified and enforced in the cases of Pasley v. Freeman, 3 Term. R., 51; Haycraft v. Creasy, 2 East, 92; Wise v. Wilcox, 1 Day, 22; Vernon v. Keyes, 12 East, 632; Upton v. Vail, 6 Johns., 182; Galagher v. Brunel, 6 Cowen, 346; 1 Sw. Dig., 571; and in many other cases, and elementary books.

Of this, the plaintiff’s counsel were fully aware, and therefore, throughout the entire bill, they have introduced averments, and relied upon the allegation and proof of facts, peculiar and necessary to sustain the jurisdiction of a court of equity. They have very distinctly and prominently alleged a trust,—a confidence of a peculiar character, of which a court , of equity should take cognizance,—and also an obligation to account, as trustee and agent, for the moneys received. These, as general allegations, are important, and give character to the bill, and without which, or some of them, it would be difficult to sustain it. ■

They have proceeded, in detail, to allege the breach of this trust and confidence, and the fraud of the defendant, in obtaining tlje money from the plaintiff.

We see no necessity of examining all these averments, or the facts found by the committee, in explanation or denial of them; because, all of them and also the facts set up in the remonstrance of the plaintiff, if true, have been submitted to, and considered by them; and the result was, that no confidence or trust was established by the proof, and no fraud or fraudulent intent whatever existed, unless the same may be implied from the facts found. The committee, therefore, has left nothing for the court to decide, but the question whether trust, 'confidence or fraud, will be implied by law, which did not exist in fact.

The law recognizes constructive frauds, as in some measure distinct from frauds in fact. Courts of equity especially, will, for reasons of public policy, oftentimes infer fraud from the existence of certain relationships, where the confiding party has suffered in a bargain, as in cases of parent and child, guardian and ward, attorney and client, physician and patient, &c., and will set aside conveyances, where the bargain appears to have been a hard one, and without looking for the proof of positive fraud or wicked intent. But no relationship or connection, of any peculiar character, existed between these parties. They were neighbors, a,nd that was all, except .that the plaintiff was a woman, and the defendant a gentleman of intelligence. We can infer no other confidence. But no case has been found, in which courts have ever inferred fraud, from such ordinary circumstances as these; and especially, where it did not appear that the party charged, acted with a special reference to his own personal advantage. On the contrary, it is said that a court of equity will not interfere, merely because a man of more honor would not have participated in the suspected transaction. The relationship must be such as to demand of the one to make a full discovery to the other. 1 Sto. Eq., § 309. So courts will, in some instances, treat certain conduct of parties as amounting to fraud, per se; 'holding that the law fixes the fraud, and that facts can not remove it. But we see no fact, or set of facts, found by this committee, which conclusively show this transaction to be fraudulent, or such as the law can not sanction.

There are also, disputable presumptions of law; but these may be rebutted, and when evidence is once admitted to rebut them, they result in mere questions of fact. If there be any such in this case, they have been disposed of by the committee. 1 Greenl. Ev., § 33.

We can not suppose that the committee intended to refer to the court the decision of any question of fact; anything, which, either by positive proof, or by the application of presumptive or circumstantial evidence, was the subject of proof. They certainly had no right to do this, and we can not assume such a jurisdiction.

Can we say then, more than the committee have said ? And if not, we see not how the petitioners are entitled to relief, in a court of equity. We advise the superior court; to dismiss the bill with costs.

In this opinion the other judges concurred.

Bill dismissed.


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    The First Congregational Society of Southington vs. Atwater and another.
    A school society is a corporation, competent to take a bequest, or devise, in trust, for educational purposes, and it is no objection to such devise, or bequest, that the trustees, who are to have the management of the fund, are required to be selected from certain ecclesiastical societies.
    A testator bequeathed fifteen thousand dollars to the school society of the town of S, and directed that said society should use five thousand dollars in erecting a suitable building for an academical institution, and hold ten thousand dollars of the same as a permanent fund for the school or schools of said academical institution, and that the net income of said fund should be used for the benefit and encouragement of said institution, in paying teachers, and other necessary expenses; and that said society should annually appoint not exceeding five persons, to be the trustees of said academical institution, which trustees should be members of the Congregational and Baptist societies, in said town. At the time of making said will, and at the death of the testator, there were two such societies as were mentioned in said devise, which continued to the present time, (and no other of the same character as either of them was established in said town.) Held, that said trustees must be appointed from the two societies, which were in existence, when said devise took effect.
    This was an information, in the nature of a quo warranto, in behalf of the state, at the relation of the first ecclesiastical society, against Orrin Atwater and Lorin Campbell, for usurping, using and exercising the office of trustees of the Lewis Academy.
    The cause came to the superior court for the county of Hartford, at the term holden in January, 1854, and was reserved for the advice of this court, upon the following agreed statement of facts.
    ' Addin Lewis, of New Haven, in the state of Connecticut, died on the 7th of April, 1842, leaving a will, legally executed, which, after his death, was duly established in the probate court of the district of New Haven, of which will the following portions are all that are important in the present ease.
    “ Eighth. If my said daughter shall die without disposing, by her will, of the estate mentioned in the foregoing article, I do give, devise, and bequeath all said estate, (so not disposed of by her,) to her lineal descendants, who shall be living at the time of her death, in the same manner and proportion as the same would have descended and been distributed to them, if she had then owned the same as her own proper estate, and had died intestate and solvent; and if there should be no lineal descendants of my said daughter living at the time of her death, I give, devise and bequeath ten thousand dollars of said estate to the school society of the town of Wolcott, in Connecticut, for the purposes herein after expressed, and fifteen thousand dollars of said estate to the school society of the town of Southington, in Connecticut, for the purposes herein after expressed. * * *
    “And as to said fifteen thousand dollars given, as aforesaid, to the school society of the town of Southington, I direct^that said society shall use five thousand dollars of the same, in erecting, near the present center of said town, a building suitable for the accommodation of an academical institution, and the remaining ten thousand dollars said society shall hold, as a permanent fund for the school or schools of said academical institution, and the net income of said fund shall be used for the benefit and encouragement of said institution, in paying teachers and other necessary expenses; and said society shall annually appoint not exceeding five persons, to be the trustees of said academical institution, which trustees shall be members of the Congregational and Baptist societies in said town; and no religious preference whatever shall ever be given in the admission of pupils to the privileges of said institution, and all pupils from the town of Wolcott, not exceeding ten at any one time, who may wish to receive instruction in said institution, shall receive the same without any charge for tuition; but before said school society of the town of Southington shall have the right to demand any part of said fifteen thousand dollars for the purposes aforesaid, there shall be raised in said society a sum not less than two thousand dollars, to be added to said fifteen thousand dollars, as an addition to said permanent fund; and if said additional two thousand dollars shall not be raised, then said fifteen thousand dollars shall go to increase proportionally the devises and legacies given in the following articles of this will.”
    The daughter of the testator, mentioned in said will, died, without disposing of the estate referred to, and without any lineal descendants, and the bequest, in said eighth section, to the school society of the town of Southington, took effect.
    Said school society, in the year 1845, accepted said bequest, raised the two thousand dollars required by the terms of said will, the same being raised by taxation, in the usual form, and received from the executors of said Lewis, said fifteen thousand dollars, and soon after erected a large and commodious building, near the centre of the village of Southington, for the purposes of said academical institution, which is called the Lewis Academy. Said society expended upon said building the sum of five thousand dollars, retaining and still keeping the sum of ten thousand dollars, together with said two thousand dollars, raised by said society, as a permanent fund, for the support of said school.
    At the. time of the making of said will, and at the death of said Lewis, there existed, in said town of Southington, but one religious society of the Congregational order, which society was then known as the Southington Ecclesiastical society, and latferly as the First Congregational society of Southington. This society was the first, and originally the only religious society, established 'within the limits of said town. ■ The society is still in existence, and contains a large number of members wh o are qualified to act as trustees of said institution.
    There were, also, at the time of making said will, and at the time of the death of said Lewis, two other religious societies in said town, viz., a Baptist society and an Episcopal society, both of which had places of worship, at the center of said village of Southington. Said Episcopal society, for more than ten years before the date of the will, had been in a languishing condition, was then nearly extinct, and has since been dissolved.
    About the year 1846, a new religious society was organized in said town, and within the limits of said school society, and which is now in existence, and contains many members, of suitable qualifications to have the care of said institu. tion. Said society was organized under the name of the Unitarian Congregational society, most of the members of the same being Unitarian in their sentiments, but neither said church nor said society having any vote or regulation, requiring the members of either to adopt the Unitarian belief, the creed of the church being that of the New Testament. Its form of church government is Congregational.
    Said school society has always, since the acceptance of said bequest, until the present year, viz., for about ten years, elected, at its annual meeting, trustees of said institution, from said first Congregational and said Baptist societies, • and no person has, during that period, been elected by said society, to that office, who was not a member of one of said societies, except that, on the 22nd of September, 1851, Jesse Olney, of the Unitarian Congregational society, was elected, who, having acted as said trustee, in sundry instances, resigned his trusteeship, on the 29th of November, 1851, the other trustees having previously resigned.
    At the annual meeting of said society in the year 1853, three persons were appointed by said society as said trustees, viz., Roswell A. Neale, and the defendants Orrin Atwater and Lorin Campbell, of whom said Neale was, at said time, and now is, a member of said Baptist society, and the other two, viz., said Atwater and Campbell, were not then, and are not now, members, either of said first Congregational society, or of said Baptist society, but said Campbell was then, and now is, a member of said Unitarian Congregational society, and said Atwater was not then, and is not now, a member of any religious society whatsoever, but both said Campbell and Atwater were then, and are, members and electors of said school society. No other trustees were, at said meeting, or at any time since, appointed by said society, and no person whatever was appointed, upon said board of trustees, at said annual meeting, or at any time since, who was, at said time, or is now, a member of said first Congregational society.

      Upon the foregoing facts, the respondents claim the right to hold said office of trustees of said academical institution.
    The foregoing question, and all other questions of law arising on the above statement of facts, are reserved for the advice of the supreme court of errors.

      Hooker and von Deutsch, for the plaintiffs, contended,
    I. That it was the intent of the testator, that the trustees of the academy should be elected only from the Congregational and Baptist societies, of the town of Southington, and from those then existing.
    II. There is nothing, in this intent, opposed to the policy of the law. Donors have a right to make any reasonable rules, with regard to the management of a charity. Girard will case, 2 Howard, 199. 14 Pick., 240. Our statute, with regard to charities, encourages and protects such foundations. Rev. Stat., p. 454, § 3.
    III. There is nothing in this intent, beyond the powers of the school society to execute.
    1. It falls within the direct purposes for which school societies were established. Rev. Stat., p. 297, § 11, and § 27.
    2. If it does not fall strictly within the scope of the direct purposes of the school society, the trust can yet be executed by the society. 2 Howard, 127.
    3. The limitations, upon the appointment of the trustees, can not be said to disfranchise members of the school society. A person can be disfranchised only where he has already a franchise. The members of the school society have no claim, as such, to eligibility.
    IV. The school society, by accepting the bequest, has contracted to comply with all the directions of the testator.
    V. The fact' that the testator required the society to contribute, and that they have contributed $2,000, towards the fund, does not affect his right to direct as to the management of the fund, and their duty to follow his directions.

      . liungerford and T. C. Perkins, for the defendants, contended,
    L. That, by the provisions of the will of Mr. Lewis, trustees may be appointed from any Congregational society in Southington.
    2. That eligibility of persons to act as trustees is not limited to the Congregational and Baptist societies, existing at the 'time the will was made, or the testator died.
    3. That allowing that, by the terms of the will, the eligibility of persons to the office of trustees is limited to the members of the Congregational and Baptist societies in the town of Southington, the particular claim in the will imposing the restriction is void, not being in conformity with the law.
   Church, C. J.

The question presented on the facts stated by the parties, and referred to us for advice under this writ of quo wa/rranto, prosecuted upon the relation of the first Congregational society in Southington, against Orrin At-water and Lorin Campbell, is, whether those respondents have a right to the office or place of trustees of the Lewis Academy, in said Southington, an academical institution, established and organized under the provisions of the last will and testament of. Addin Lewis, Esq., deceased. We have given no attention to the form of the remedy adopted in this case, because the parties waive any objection to it, and consent that this question may be decided on this proceeding.

It will not be necessary, here, to repeat the facts agreed to: they are upon the record. Nor shall we notice all the points suggested, by course.

That corporations may be the beneficiaries and donees of bequests, or conveyances for charitable purposes, or be constituted trustees, to hold and control them for others, is now no longer a question. And that a school society, organized under our laws to carry out our system of free school education, is a most appropriate depository of a fund created for educational purposes, will not be disputed. And if there be any case of a public charity, over which a court of equity should exercise a conservative jurisdiction, when necessary, it would seem it is presented here.

The provision or direction in the will, which accompanied the bequest to the school society, that the trustees should be selected from the Congregational and Baptist societies in the town of Southington, does not assume the form of a condition, the non-observance of which might work a forfeiture, upon the application of the testator’s heirs; nor did the testator so.intend it. Nor was it a mere request or suggestion, which the school society might disregard with impunity. It was a positive injunction or direction, intended to qualify the character of the bequest, and in the opinion of the donor, essential to the object he had in view.

With this direction accompanying it, the school society accepted it, and this operated as a contract, on its part; an engagement, that the direction should be complied with. A refusal now to do this, would operate as a fraud upon the testator’s motives.

We can see, in all this, enough to justify and even to demand the exercise of the powers of the court, if it be true, as the relator claims, that the essential directions of the will, in regard to the qualifications of the officers or trustees, appointed under it, have been disregarded.

The corporation is a public one, established under our laws, to promote the important interests of education; its officers and agents partake of a public character; and so long as the school society shall retain the charity, the qualifications prescribed for these trustees, by the donor, are to be considered as essential as if the law had prescribed them, if found to be consistent with the law.

It is claimed by these defendants, that there are peculiarities in this case, which should forbid the court from interfering with the present acting trustees, chosen by the school society.

R is objected, that the effect of the direction in the will, that the school society shall elect the trustees of the academy from the members of the Congregational and Baptist societies in Southington, is to convert the school society into an agency to promote denominational or sectarian views of religion, in opposition to the entire genius and spirit of our constitution and laws. If such was^the object of the donor, and such would be the probable result of this direction of his will, we do not believe we ought to give it countenance. For, although we recognize the right of every man to establish foundations and charities, to promote his own or any other peculiar religious opinions, we should very much doubt his right or his power to make use of our free school corporations, as his instruments for such a purpose. These corporations are carefully organized, for the purposes of secular education, free and open to all persons, of all opinions, and although all our laws, and especially our school laws, are believed to be based upon the Christian religion, as the foundation of their moral obligation, yet they impose-no obligations, and are not intended even to create an influence upon our free schools, or free school corporations, of a denominational character or tendency.

But the views which we have taken of this will have not led us to believe, that there is any conflict or inconsistency, between the testator’s directions, and the powers and duties of the school society, or any of its members.

The will does not require that the trustees of the school should be members of any church, or committed to any doctrinal opinions, nor does it require or suggest any denominational action, by these trustees ; it directs only that they shall be members of the Congregational and Baptist societies in the town of Southington. Now, it is as well known, perhaps, as any fact connected with our ecclesiastical organizations in this state, that churches and societies are distinct bodies. Churches regulate the admission of their own members into their own bodies, and the law prescribes the admission of members of the several societies.

Members of churches are supposed to be committed to certain prescribed or acknowledged theological doctrines ; whereas, members of societies are not, and their opinions of doctrine are frequently dissonant and conflicting. Members of churches are often the minor portions of the society to which they belong. Furthermore, we infer that the donor of this fund did not intend to interfere at all with the doctrinal opinions of the pupils of the school he was founding, from the fact, that he directed that no religious preference whatever should ever be given to the admission of pupils to the privileges of the institution. He intended, by confining the trustees to those Congregational and Baptist societies, which then embraced the largest portion of the population of the ■town, to secure the supervision of men who, he supposed, would feel, and take, an active interest in the prosperity and success of the institution. He probably did not anticipate the future introduction of new societies, nor of new creeds, for which he could make no provision. He acted in reference to the condition of things as they then were.

It was also suggested in the argument, that this restrictive provision interfered with the electoral privileges of the members of the society, and in this respect, stood in opposition to the law.

But no right conferred upon the members of school societies, by the law, is restricted by the will. They have the same right of acting and voting, the same power of selecting all the officers of the society, which the law authorizes and directs them to appoint, as before. If they choose to interfere in the appointment of these new men, the trustees, under the will of Mr. Lewis, it is but reasonable, that they should conform to his wishes on this subject. The members of this society are no more restricted in their corporate franchises, by being confined in their choice of trustees, to the members of those Congregational and Baptist societies, than they would have been, if the directions of the testator had limited the selection to persons within certain ages, or had suggested any other reasonable qualifications.

On the question, of what particular religious societies the trustees should be members, we think that, as there was, at the time of the making of the will, a Congregational and a Baptist society in Southington, which have continued in existence to the present time, and no other society of the character of either of them, has been established in that town, the trustees must be appointed from those two societies. What should be done with the fund, if those societies, or either of them, should become extinct, and there should be no other society there of the same character, or if another such society should be established there, it is not now necessary to determine.

As neither of the defendants was a member of either of those two societies, we are of opinion, that they are not entitled to exercise the powers and duties of trustees of the Lewis Academy, and the superior court is so advised.

In this opinion the other judges concurred.

Judgment accordingly.