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Opinion of the Court.
terested in the same, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to said action or other proceeding: Provided, that nothing herein contained shall render any person who is charged with any offence, in any criminal proceeding, competent or compellable to give evidence for or against himself or herself; or shall render any person compellable to answer any question tending to criminate himself or herself; or shall, in any criminal proceeding, render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, or in any proceeding instituted in consequence of adultery; nor shall any husband be compellable to disclose any communication made to him by his wife during the marriage, nor shall any wife be compellable to disclose any communication made to her by her husband during the marriage.” Act of July 2, 1864, c. 222; 13 Stat. 374.
This act (except in the restriction to the District of Columbia) was taken, almost word for word, from modern English statutes;. the first half of it (except the words " and any and all persons interested in the same," who had been made competent witnesses by the statute of 6 & 7 Vict. c. 85) from section 2' of the statute of 14 & 15 Vict. c. 99; the first two clauses of the proviso from section 3 of that statute; and the last two clauses, being those concerning husband and wife, from the statute of 16 & 17 Vict. c. 83, $ 3.
The same act has been reënacted in the Revised Statutes of the District of Columbia, with hardly any change, except in substituting for the words “except as hereinafter excepted," the words “except as provided in the following section"; and in making the proviso a separate section, omitting the words, ** Provided that nothing herein contained,” and beginning with the words, “Nothing in the preceding section.” Rev. Stat. D. C. SS 876, 877.
The latter part, which constituted the proviso in the act of 1864, c. 222, and which now forms section 877 of the Revised
Opinion of the Court.
Statutes of the District of Columbia, is upon its face, and according to its uniform construction in the courts of the District of Columbia, not new and affirmative legislation, but w bolly negative, and by way of proviso or exception out of the enactment which goes before; and therefore has no application to any cases other than those in which the husband or wife, called as a witness, is a party, in name or in fact, to the suit, or interested in it; and does not make a husband or wife, not a party to or interested in the suit, competent to testify, before or after the death of the other, to private communications between the latter and the witness. United States v. Guiteau, 1 Mackey, 498, 547, 548; Clark v.
Krause, 2 Mackey, 559, 572; Holtzman v. Wagner, 5 Mackey, 15, 16; Beale v. Brown, 6 Mackey, 574, 577. See also Barbat v. Allen, 7 Exch. 609; Percival v. Caney, 14 Jurist, 1056, 1062; S. C., cited 7 Exch. 611; Alcock v. Alcock, 5 De G. & Sm. 671; The Queen v. Payne, L. R. 1 C. C. 349, 355; The Queen v. Thompson, L. R. 1 C. C. 377.
Stephney Forrest's widow was neither a party to nor interested in this suit, having conveyed all her interest in the subject thereof to the defendant Grimshaw before the suit was brought. She was therefore incompetent to testify to private conversations between her and her husband in his lifetime; and a conversation between them in their own home, in the presence of no one but their young daughter, who does not appear to have taken any part in it, must be deemed to be a private conversation, within the rule. Jacobs v. Hesler, 113 Mass. 157.
The daughter herself may have been a competent witness to such a conversation. But her testimony, which amounted to no more than that she heard her father, as he left home one morning, say that he was going to the secretary of the society to get money to buy land for the society, was clearly insufficient to prove that he bought the land with money of the society, or that the society had any greater or other title, legal or equitable, than appeared to be conveyed to it by the deed made by him to, and aecepted by, the trustees in its behalf. Such slight testimony to a casual remark of the
Opinion of the Court.
If it was,
supposed trustee, more than forty years ago, falls far short of the clear proof required by a court of equity., whenever a trust in real estate is sought to be implied, against the terms of a deed of conveyance, by parol evidence of payment of the price by a third person. Prevost v. Gratz, 6 Wheat. 481; Slocum v. Marshall, 2 Wash. C. C. 397; Smith v. Burnham, 3 Sumner, 435.
We are then brought to the principal question in the case, which is of the nature and effect of the deed from Forrest to trustees for the Union Beneficial Society for a burial ground.
The first inquiry which naturally arises is whether the deed was for a charitable use, in the legal sense. the conveyance would not be open to any legal objection by reason of the length of time during which the trust might last, or because of the society named not being a corporation. Ould v. Washington Hospital, 95 U. S. 303; Russell v. Allen, 107 U. S. 163, 171. And the trustees, although the deed did not in terms run to their heirs and assigns, would take the legal estate in fee. Russell v. Allen, above cited; Potter v. Couch, 141 U. S. 296, 309; Easterbrooks v. Tillinghast, 5 Gray, 17, 21.
A grant for the maintenance of a churchyard or burial ground in connection with a church or religious society, or of a public burial ground, or a burial ground of all persons of a certain race, class or neighborhood, might be considered as in the nature of a dedication for a pious and charitable use. Beatty v. Kurtz, 2 Pet. 566, 583, 584 ; Cincinnati v. White, 6 Pet. 431, 436; Jones v. Habersham, 3 Woods, 443, 470, and 107 U. S. 174, 183, 184; Dexter v. Gardner, 7 Allen, 243, 247; In re Vaughan, 33 Ch. D. 187.
By the act of Congress of May 5, 1870, c. 80, $ 5, reënacted in the Revised Statutes of the District of Columbia, provision has been made for the voluntary incorporation of cemetery associations in the District of Columbia ; and “any person or persons desiring to dedicate any lot of land, not exceeding five acres, as a burial ground or place for the interment for the dead, for the use of any society, association or neighborhood," may convey such land by deed to the District of Columbia, “speci
Opinion of the Court.
fying in such deed the society; association or neighborhood for the use of which the dedication is desired to be made, and thereby vest the title to such land in perpetuity for the uses stated in the deed.” 16 Stat. 106, 107; Rev. Stat. D. C. SS 594-604.
But the conveyance now in question, made to private persons as trustees, twenty-five years before the passage of that act, was expressed to be “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.” The articles of association of that society appear to have contemplated the burial of none but its own members; and the usage, which early sprang up, of permitting the interment in its burial ground of other inhabitants of the District of Columbia, upon the payment of certain fees, appears to have been adopted, not from any charitable motive, but as a source of private profit to the members of the association. It may be doubted whether, in the absence of express statute, the burial ground of such a society can be held to be a public charitable
See King v. Parker, 9 Cush. 77; Donnelly v. Boston Catholic Cemetery, 146 Mass. 163; Anon., 3 Atk. 277; Pease v. Pattinson, 32 Ch. D. 154; Cunnack v. Edwards, (1896) 2 Ch. 679; In re Buck, (1896) 2 Ch. 727.
If it be assumed, however, as most favorable to the defendant, that this deed created a charitable trust, it was not a grant indicating a general charitable purpose and pointing out the mode of carrying that purpose into effect, thus coming within the class of cases in which courts of chancery, when the particular mode had failed, have carried out the general purpose. Mormon Church v. United States, 136 U. S. 1, 51-60; Jackson v. Phillips, 14 Allen, 539. But the trust was restricted, in plain and unequivocal terms, to the particular society to be benefited, as well as to the purpose of a burial ground, adding (as if to put the matter beyond doubt) "and for no other purpose whatever.” The trust would end, therefore, at the latest, when the land ceased to be used as a burial ground and the society was dissolved. Easterbrooks v. Tillinghast, above cited; Reed v. Storoffer, 56 Maryland, 236, 254; Second Universalist
Opinion of the Court.
Society v. Dugan, 65 Maryland, 460; In re. Rymer, (1895) 1 Ch. 19, 31, 32.
In Easterbrooks v. Tillinghast, above cited, an inhabitant of a town devised land to a trustee named, and his successors to be appointed as provided in the will, in trust to apply the income in support of the gospel and maintenance of a pastor or elder in a church already existing in the town, of a certain faith and practice, so long as the members of that church “or their successors shall maintain the visibility of a church in said faith and order, and uniting in fellowship and communion with those who hold and practise said principles, and no others.” Three years after the testator's death, the members of the church, reduced to two in number, voted and resolved, at a meeting called by public notice, that they would no longer endeavor to maintain the appearance of a visible church, and declared the church dissolved and extinct. The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice Metcalf, decided that the trustee took an estate in fee; but that, the church having been dissolved, and having ceased to be a visible church, he held the land for the devisor's heirs at law as a resulting trust. 5 Gray, 21.
In Rawson v. Uxbridge, 7 Allen, 125, cited by the defendant, tho deed was to a town of land already, as the deed recited, “ being improved for a burying place," habendum "to the said town of Uxbridge forever, to their only proper use, benefit and behoof, for a burying place forever.” There were no such negative words, as in the deed now before us, “and for no other purpose whatever"; the action was at law; and the only question argued or considered. was whether the deed created an estate upon condition subsequent. While deciding that it did not, Chief Justice Bigelow said: “If it be asked whether the law will give any force to the words in a deed, which declare that the grant is made for a specific purpose, or to accomplish a particular object, the answer is, that they may, if properly expressed, create a confidence or trust, or amount to a covenant or agreement on the part of the grantee." 7 Allen, 130.
The somewhat similar cases of Crane v. Hyde Park, 135