Statement of the Case. ney Forrest being dead, the defendant Grimshaw, who was a son in law of Mrs. Brooks, obtained in 1887 and 1888 conveyances to himself, as follows: 1st. Deeds from Mrs. Forrest and Mrs. Brooks of their interests in the land. 2d. A deed from Philip Wells, the president of the society, purporting to convey all its and his interests in the land. 3d. Deeds of the land from the heirs of the trustees aforesaid. In February, 1889, the board of health, upon the petition of Grimshaw, claiming to have authority from the surviving members of the society, ordered him to exhume all the bodies interred in this burial ground, and to remove them to other cemeteries; and he did so at his own expense, amounting, as he testified, to the sum of $2000. The bill alleged that the plaintiffs and the defendants sued and were sued in their own right, except Cummings, who sued as trustee under the trust afterwards mentioned; and that on March 20 and 27, 1889, the land in question was conveyed to him by the other plaintiffs, by deeds which (as put in evidence. at the hearing) purported to convey that land to Cummings in fee, "in and upon the trusts, nevertheless, hereinafter mentioned and declared, that is to say, in trust to sell and convey the same to such person or persons, in fee simple or otherwise, and upon such terms and conditions, as Franklin H. Mackey, of the District of Columbia, shall in writing direct, and the proceeds of said sale to distribute according to the terms of a paper of even date herewith, and signed in duplicate by the party of the first part, one copy of which is in the hands of the said Cummings, and the other in the hands of the said Mackey; and the purchaser or purchasers of said property shall not be required to see to the application of the purchase money." The paper so referred to, concerning the distribution of proceeds of sales, was not in the record transmitted to this court. The bill further alleged that, "by virtue of said deeds, complainant Cummings now holds the entire legal title in trust for the other co-plaintiffs to said property, except the interest of the defendant William H. Grimshaw; and that a complete and perfect title to the same will be held by the complainants when this court has decreed the reverter which complainants Statement of the Case. are entitled to have declared by reason of the terms of the said original deed from Stephney Forrest to said trustees." The bill prayed that the land "be decreed to have reverted to the heirs of Stephney Forrest, by reason of the terms. and provisions and purposes of the original conveyance of said Stephney Forrest, and the order of the municipal authorities, and the carrying out of said order"; that a commission be appointed to make partition of the land between Grimshaw as grantee of Mrs. Brooks, one of the heirs of Stephney Forrest, and the plaintiffs, his other heirs; that the deeds to Grimshaw from the heirs of the trustees be declared to be a cloud upon the plaintiffs' title, and of no effect to pass any title in the land, and be directed to be surrendered for cancellation; and for further relief. Grimshaw, in his answer to the bill, denied that Cummings sued as trustee, and alleged that he sued in his own right and for his own benefit; and at the hearing, in support of this allegation, introduced a bill in equity, filed by Cummings alone April 16, 1889, similar to the present bill, except in alleging that by the deeds to him from F rrest's heirs the entire and full beneficial interest and estate vested in him. That bill was dismissed by Mr. Mackey, as solicitor for Cummings, on the same day on which he filed the present bill as solicitor for the plaintiffs therein. The answer further averred that the deeds to Grimshaw from the heirs of the original trustees were procured by him at the instance and for the benefit of the Union Beneficial Society, and he held the land in trust for the society, and for no other use or purpose whatsoever; and denied that those deeds were clouds upon the plaintiffs' title; denied the plaintiffs' title; and denied that any title vested in Stephney Forrest's heirs, by reverter or otherwise; and averred that the deed from Forrest vested in the trustees named therein an absolute and indefeasible estate in fee simple; and that the society used the land solely for the purpose of a burial ground as long as it was lawful so to use it, and only ceased such use when compelled to do so by law. To this answer the plaintiffs filed a general replication. Opinion of the Court. Mrs. Brooks never filed an answer; and the plaintiffs, before the hearing, dismissed their bill as against her. Upon the hearing, the Supreme Court of the District of Columbia dismissed the bill," without prejudice to the rights of the complainants to claim, in any proper suit or proceeding, such right, if any, as the said Stephney Forrest may have been entitled to, in said real estate, as a member of said Union Beneficial Society." The plaintiffs appealed to this court. Mr. Franklin H. Mackey and Mr. H. O. Claughton for appellants. Mr. W. L. Cole and Mr. T. J. Darlington for appellee. MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court. Stephney Forrest, in 1845, purchased a parcel of land in Washington, and conveyed it to three persons, "trustees for the Union Beneficial Society of Washington City," habendum to them "and their successors in office forever, for the sole use and benefit of the Union Beneficial Society of the City of Washington as aforesaid, for a burial ground, and for no other. purpose whatever." Forrest died in 1855; and all three trustees afterwards died. The Union Beneficial Society was an unincorporated association for the mutual aid of its members in case of sickness, and for their burial in case of death. This land was used by the society for a burial ground for nearly forty years, and then, by order of the board of health, ceased to be so used; and all the bodies which had been buried there were exhumed and removed to other cemeteries. Grimshaw afterwards pročured conveyances of the land to himself from the heirs of the trustees named in Forrest's deed, as well as from Forrest's widow and from Mrs. Brooks, one of his heirs, and from Wells, the last president of the society and one of its three surviving members. And the society (which, by the terms of its articles of association, was to continue so long as it had six members) Opinion of the Court. does not appear to have since done any acts, held any meetings or kept any records, and was practically dissolved and extinct. The present bill was filed by the other heirs of Forrest against Grimshaw and Mrs. Brooks, praying for a decree that the land had reverted to Forrest's heirs; and for a partition of the land between the plaintiffs and Grimshaw as grantee of Mrs. Brooks; and for cancellation of the deeds from the heirs of the trustees to Grimshaw, as being a cloud upon the plaintiffs' title; and for general relief. The original joinder of Mrs. Brooks as a defendant is unimportant. By reason of having conveyed her right to Grimshaw, she had no interest in the suit, and filed no answer; and the plaintiffs, before the hearing, dismissed their bill as against her. Nor can the joinder of "Horace Cummings, trustee,” as a plaintiff in this bill, affect the rights of the principal parties to the suit. The deeds made to him by the other plaintiffs, two months before this suit was brought, and produced at the hearing, showed that the land was conveyed by them to Cummings in trust to sell and convey it to such persons and upon such terms and conditions as their solicitor should direct, and to distribute the proceeds of such sale according to the terms of a paper, copies of which were in the hands of the solicitor and of Cummings respectively. Although that paper is not in the record, the terms of those deeds clearly show Cummings to have been a mere trustee to bring suit and to sell the land for the benefit of the other plaintiffs, and not in his own behalf, notwithstanding the allegation, in the bill thereafter filed by him alone, and voluntarily dismissed upon the filing of the present bill, that by those deeds the whole beneficial interest and estate vested in him. Perhaps, as suggested by the counsel of the appellee, the former bill was dismissed for fear of the rule of law, recognized in Schulenberg v. Harriman, 21 Wall. 44, 63, that a right of entry for breach of a condition subsequent cannot be alienated. The allegation in the answer, that Forrest purchased this land in behalf of the society, and with its money, is supported Opinion of the Court. by no competent and sufficient evidence. The only evidence upon this point was the testimony, taken forty years after the transaction, of Forrest's widow and daughter, respectively the grandmother and the mother of Grimshaw's wife. The first question presented in relation to this testimony is. whether the widow was a competent witness to prove admissions or declarations supposed to have been made by her husband in conversation with her. At common law, upon grounds. of public policy, husband. and wife (with some exceptions not here material) were not permitted, even by consent, to give evidence for or against each other, or to testify, even after the ending of the marriage relation by death or divorce, to private communications which took place between them while it lasted. Stein v. Bowman, 13 Pet. 209, 222; O'Connor v. Majoribanks, 4 Man. & Gr. 435; S. C., 5 Scott N. R. 394; 1 Greenleaf on Evidence, S$ 334-337. The Congress of the United States, by a clause originally inserted in the Civil Appropriation Act of July 2, 1864, c. 210, 83, 13 Stat. 351, and embodied in section 858 of the Revised Statutes of the United States, has enacted that there shall be no exclusion of any witness in a civil action because he is a party to or interested in the issue tried. But that clause has merely removed all disqualifications of witnesses for interest, and does not affect the exclusion of testimony of a husband or wife upon grounds of public policy. Lucas v. Brooks, 18 Wall. 436, 453; Bassett v. United States, 137 U. S. 496,. 505. Congress, on the same day, passed another act, entitled "An act relating to the law of evidence in the District of Columbia," by which it was enacted "that on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or other proceeding in any court of justice, in the District of Columbia, or before any person having by law, or by consent of parties, authority to hear, receive and examine evidence, within said District, the parties thereto, and the persons in whose behalf any such action or other proceeding may be brought or defended, and any and all persons in |