
    Newlin et al. Executors of Newlin against Newlin.
    In Error.
    WRIT of error to the Common Pleas of Delaware county. The case was as follows:
    
      Nathaniel Nervlin, the defendant in error,
    brought an action of debt on bond, against the executors of Thomas Newlin. At the trial the defendant’s counsel offered as a witness Thomas Speakman; to the competency of whom the counsel for the plaintiff objected, “ in consequence of an interest de- “ rived under the will of the defendant’s testator; the said “ witness being the husband of Edith Speakman, mentioned “ in the said will.” The interest of Edith was derived thus. The testator devised certain parts of his real estate to trustees, to raise out of the rents, issues, and profits, the sum of 2000 dollars, which, when raised, he directed them to put out at interest on land security, and to pay the interest thereof annually to his daughter Edith Speakman, for her separate use and benefit, whether sole or married, during her natural life ; her receipt to be their sufficient discharge. After the death of Edith the principal sum was to be equally divided among her children. The counsel for the defendants then offered the release of Thomas Speakman and Edith his wife, to the trustees, executors, and residuary devisees, mentioned in the will of Thomas Newlin, of all demands whatsoever upon the estate of the testator. It did not appear from the record, that proof was made at the trial of the execution of this realease ; nor was the instrument acknowledged by Mrs. Speakman, agreeably to the act of assembly, which prescribes the mode in which feme coverts may dispose of their real estate.
    The court, notwithstanding the release, rejected the witness, and sealed a bill of exceptions.-
    
      Sergeant and E. Tilghman for the plaintiffs in error.
    The interest of the witness did not appear. ' There was a provision for his wife and her children out of a part of the testator’s estate, but unless it had been shown, that this part would have been diminished by the event of the suit, the court, which ought to favour the admission of testimony, was "wrong to reject him. It is incumbent on the party objecting to a witness, to prove his incompetency.
    
      If an instrument of writing be slated in a bill of exceptions to have been offered in evidence at the trial, and no objection appears to have been made to the proof of its execution, it is to be presumed to have been either duly proved or admitted.
    If a man devise his real estate to trustees to raise a sum of money, which when raised, they are to put out at interest, for the sole and separate use ofhis daughter, a feme covert, who is to receive the interest annually, and whose receipt is to •bea discharge; she may release her interest, though no express power of appointment be given in the will.
    It is not necessary, that the wife should be separately examined in such a case,because her interest is personal.
    A release to, the trustees, executors, and residuary devisees is good4
    
      As the bill of exceptions states the release to have been offered in evidence, and no objection appears to have been made to the sufficiency of the proof of its execution, the implication of course is, that it was either duly proved or admitted.
    [Mr. Frazer for the defendant in error,
    here offered depositions relating to the execution of the release; but they were rejected by the court.]
    If the witness possessed an interest, it was removed by the release of himself and his wife. The devise was to her sole and separate use; her receipt was a discharge. This was equivalent to giving her a power of appointment, and she might have executed a release alone, whether trustees had been named or not. The circumstance of her husband’s joining in the instrument, makes the case much stronger. Rolf v. Rudder, Bunb. 187. 4 Burns, Ec. Law, 107. Peacock v. Monk, 2 Ves. 190. 193. Grigby v. Cox, 1 Ves. 518. Moor v. Freeman, Bunb. 205. 3 P. Wms. 38. 2 Atk. 384. 2 Vern. 613. 1 Br. Ch. Ca. 16. 1 Ves. 163. 2 P. Wms. 144. 1 Ves. 303. 1 Atk. 278. 3 Burr. 1778. Sug. on Ven. 394-5. 2 Ves. 669.
    The instrument did not require the private examination of Mrs. Speakmen; because her interest was personal: The 2000 dollars were to be raised out of the rents, issues, and profits, and the interest of that sum, when raised., was to be paid to her.
    The parties to the release were sufficient. The trustees were the proper persons to receive it, and all those who had any claim under the will were named.
    
      Frazer and Ingersoll contra.
    
      Edith Speakman was plainly interested in the event of the suit; because if the plaintiff recovered, his judgment would be a lien upon the land out of which her fund was to be raised; and the husband cannot be a witness for or against his wife. Gilb. Ev. 133. Peak. Ev. 173, sec. 4. Bull. N. P. 266.
    The bill of exceptions does not state the release to have been proved; and nothing is to,be presumed. It is defective for want of parties. To give operation to a, release there must be a previous estate, which is not the case on the present occasion. 2 Bl. 324. Shep. Touch. 320. The trustees who were intended to protect the interests of the wife, certainly cannot receive a release which would tend to her disadvantange. But Mrs. Speakman hadno power to release.
    The general rule is, that' the deed of a married woman is' void. It is true, that if a power be expressly given to a femecovert to dispose of her estate, she may exercise that power; no such power, however, is given by the will of Thomas Newlin. The legal estate is vested in trustees, in order to raise a certain sum, the interest of which she is to receive annually for her support, without having any controul over the fund from which it is to spring. 2 Ves. 60. Id. 579.
    Another objection to the instrument-is, that the wife was not privately examined, according to the act of assembly, of February 24th, 1770, 1 Sm. Laws, 307, which, as it related to real estate, ought to have been done.
   Tilgiiman C. J.

This is an action of debt on a bond, brought by Nathaniel Nexvlin, the defendant in error, against the executors of Thomas Newlin, the plaintiff in error,* in the Court of Common Pleas of Delaware county. On the trial of the cause, the defendants produced Thomas Speakman as a witness, who was objected to by the' plaintiff, as incompetent on account of his wife’s interest in the estate of Thomas Newlin. The defendants, at the time that they produced the witness, offered in evidence a release of himself and his wife of all their interest in the estate of the said Newlin.' The court rejected the witness, and the defendants excepted to their opinion. On the argument in this court,*it was contended by the counsel for the defendant in error, that it did not appear on the record, that any evidence was given of the execution of the release, and therefore the interest of the witr ness was not removed. But in this I think the counsel are mistaken, for it is not stated that any objection was made to the reading of-the deed of release. The objection is confined: to the testimony of Speakman, who is alleged to be incompetent, in consequence of an interest vested in his wife under the will of the defendant’s testator. It appears, therefore, that the release must have been read by the court, and whether its execution wa$ preved or admitted is immaterial. This preliminary question being disposed of, I shall proceed to the consideration of the real ground of controversy, that is to say, whether the release had such an operation as to remove the interest of Thomas Speakmari’s wife, for it is confessed by the counsel for the plaintiff in error, that when the wife is interested, the husband cannot be a witness. Edith, the wife of Thomas Speakman, was the daughter of Thomas: Newlin, the defendant’s testator, and her interest under the will of her father, is derived as .follows: — The testator directs certain trustees, named in his will, to receive th.e rents and profits of certain parts of his real estate, until the .sum of $2000 shall be raised, clear of all expenses, of repairs, taxes, &c. “ which said $2000 shall be by them put out to interest “on.land security, and the interest thereof shall be paid by “my said trustees annually, to my daughter Edith Speakman, tvhose receipts shall be their sufficient discharge, for her ozvn separate use and benefit, whether sole or married, for ¿and “ during the term of her natural life, and at her decease the “ said principal sum of $2000 shall be equally divided among “ all her children.”

In remarking on the release, the counsel for the defendant in error contended, 1st, that Mrs. Speakman had no power to make a release. 2d. That if she had, this release was void for want of proper parties.

In support of the first position, it was said that the consideration was but nominal (one dollar) ; that the object of the testator was to secure an .annuity for his child during life, and it would defeat his intention, if she were permitted even by her own act, to reduce herself to poverty; that trustees were introduced for the purpose of saving her from her own imprudence, and therefore they could not accept a release which destroyed the object for which they were appointed. But these objections, however plausible, are not well founded. For the object of the testator was to give his .daughter the absolute power over the annuity, free from her' husband’s controul, and not-subject to ,his creditors. This he supposed could not be effected without trustees, and therefore they Were appointed. The testator,- if he had thought proper, might have given the trustees some controul over the actions of his daughter, but he has not done- it, and therefore it is not to be supposed that he intended -,t.o d.o it. Her receipt is to be their discharge, and when received she might have given the money to her husband, or paid his debts with it. It is well settled that this power may be vested in a married woman. The rule is thus laid down by Lord Hardwicke, in Grigby v. Cox, 1 Ves. 518, and Hearle v. Greenwood, 1 Ves. 303. “ Where any thing is settled to the wife’s separate use “ she is considered as a femé sole, and may appoint in what “ manner she pleases, and unless the joining of trustees with “ her, is made necessary, there is no occasion for it.” And in Allen v. Popworth, 1 Ves. 163, it is decided, that the wife having power to receive rents and profits of land to her separate use, and to appoint them as she pleases, may appoint in favour of her husband. It is said, that in the present instance she has been prevailed on by her husband to take a ruinous step, for no other purpose than to open the way for his testimony, and that he may have been actuated by corrupt motives. What his motives were, we cannot know, but it does not appear, that he has made use of deception, coercion, or undue influence. If it did, there might be ground for avoiding the release on that specific objection. It is very possible, however, that Mrs. Speakman may have thought, that she was consulting the interest of her children, if not her own, in giving up her annuity in order to .let in her husband’s evidence ; for the principal of the §2000 is to go after her death to her children. Supposing then that she had power to release her interest, it is to be inquired whether she has exercised this power in a legal manner. Her interest was in the nature of personal property. The trustees were to raise the money and put it out to interest, and Mrs. Speakman!s right was to the interest. She had nothing to do with the land, nor could any conveyance or release of her’s operate on the land. So that she is not subject to the provisions of the act of assembly prescribing the mode in which married women may dispose of their real estates. There was, therefore, no necessity for an acknowledgment and private examination before a magistrate. The only remaining objection is to the want of parties to accept the release. But if the case admits of a release, there can be no want of parties, for it extends not only to the trustees, but to the executors and residuary devisees of the testator. It cannot operate beneficially for the -trustees, but if the right of Mrs. Speakman is extinguished, the trustees will be accountable for the interest money to the persons who are entitled to it under the will of the testator; Upon the whole of this case I am of opinion, that the interest of .the wife was released, and therefore the husband was a competent.witness. The judgment must therefore be reversed, and a venire facias de novo awarded.

Yeates J.

Edith Speahnan had such an interest in the event of this cause, as would exclude her husband on general principles of policy from being a witness. If the defendant in error recovers in the suit, the lands out of which her annuity arises would be charged with the lien of his judgment. If he miscarries, these lands would be no longer liable.

The release offered to the court to show the. competency of Thomas Speahnan, I consider as admitted by the bill of exceptions to have been regularly executed as it appears in the bill of exceptions, but not acknowledged. If any doubt ■existed on this matter at the trial, it was incumbent on the adverse party to require proof of the execution of the paper by the husband and wife. Failing so to do, it would be a complete surprise' on the plaintiffs in error, now to insist on the defect of proof.

What then is the legal operation of this instrument ? As to the trustees, the court would not construe it as vesting any beneficial interest in them, because this would be repugnant to the very nature of their trust;; but as to the .residuary legatees it might well operate beneficially during the life of the annuitant. And it was the duty of the executors to resist every claim against the estate of the testator which they thought ill-founded.

The great objection offered against the release is, that Edith Speahnan has under the will the bare power of receiving the annual interest on 2000 dollars, to be raised out of the rents and profits of the lands devised for that purpose, for her own separate use and benefit, without, any power of appointment, or general management, or controul over the funds; and further, that this.being an interest arising out of lands for the benefit of the wife, she should have been examined separate, and apart from her husband, agreeably to the provisions of the act of assembly respecting the deeds of feme coverts, in order to give validity to the release. '

But to the lands Edith had no pretensions, nor was she au'thorised in the slightest degree to intermeddle with the rents and profits. The trustees were to raise 2000 dollars there-out, to serve as a principal to pay her the annual interest, and when thus raised it becomes personalty; the interest thereof; being subjected to her controul and disposition in the same manner as if she was unmarried. The cases citedby the counsel for the plaintiff in error, fully show that courts of equity consider a feme covert to be sui juris as to her separate estate, without the intervention of her trustees; and the will of the testator here directs, that his daughter Edith should receive the yearly interest for her own and separate use, whether sole or married. If she was single, I presume no difficulty could occur as to her dominion over the interest, and being placed in the same situation by the donor, I see no reason why she may not by her voluntary act bar herself of all demands under the will. I apprehend she has done so in the present instance, and that the impediment against her husband’s testimony being thus removed, he ought to have been admitted as a witness. I am, therefore, of opinion, that the judgment of the Court of Common Pleas of Delaware county be reversed, and a new trial awarded.

Brackenridge J. differed from the rest of the Court,but gave no written opinion.

Judgment reversed, and a venire de novo awarded.  