
    John Richardson versus Samuel Learned et al.
    
    By an indenture between husband and wife, of the first part, the defendants, of the second, and the plaintiff, of the third, reciting that the husband and wife have conveyed her real estate to S., one of the defendants, and that as a consideration to the husband for the conveyance of his interest, S. has given him a promissory note, it is agreed that the amount of this note shall first be raised out of the estate to indemnify S., and the defendants covenant with the plaintiff that S. shall hold the proceeds of the residue and the securities for the same, and shall collect and pay over the income thereof, for the separate use of the wife, without the control of her husband, and shall pay and deliver over such proceeds and securities to her or to sucli person as she should appoint by her writing attested by two witnesses. S. sold the estate and the wife made a demand upon him in the form prescribed, to deliver to her, for her separate use, the moneys and securities in his hands, and upon his refusal the plaintiff brought an action against the defendants for the breach of their covenant;—
    It was held, that to a plea alleging that the demand was induced by the husband and others, by fraud and collusion, in order that the husband might get the possession and control of the property, a replication traversing fraud and collusion did not tender an immaterial issue : —
    Held, also, that the wife had a general power of appointment, and that the property, if recovered by the plaintiff, would be held by him subject to her direction and appointment, without the control of her husband : —
    
      Held, also, that the husband was admissible as a witness for the plaintiff, his interest in the event of the suit being contingent.
    The demand, which was made on the defendant at six miles distance from his place of residence, and after sunset and about five hours before the suit was commenced, was held to be reasonable under the circumstances, S. having repeatedly declared he meant to keep the property for his own use, and the other defendant, whose estate was attached, having declared that if he had had notice, the plaintiff would not have got his property to attach.
    This was an action of covenant broken, against Samuel Learned and Thomas Learned, founded upon a deed of indenture dated May 7th, 1824, between Daniel Jackson and Polly nis wife, of the first part, the defendants of the second part, and the plaintiff of the third part. The indenture recites, that Daniel and Polly Jackson have, by their deed bearing even date with the indenture, conveyed to Samuel Learned all their joint and several estate in the Philadelphia Packet wharf, in Boston ; that Samuel has made his promissory note to Daniel Jackson, for $ 2500, payable in six months, as a consideration for the conveyance to Samuel of Daniel Jackson’s right in the real estate above mentioned ; that it is the intention of the parties, that a sum of money shall first be raised out of the estate, sufficient to pay Samuel the amount of bis note to Daniel Jackson, and that then the net rents and profits and income of the estate shall be paid to Polly Jackson to her sole and separate use, without being subject in any way to the authority or control of her husband or to his debts, and that if the estate shall be sold during the life of Polly Jackson, as provided in the indenture, the proceeds thereof, after raising the amount of the note and making deductions for the charges of managing the estate, shall be placed out at interest on good security by Samuel, or paid over to Polly Jackson, for her sole and separate use, without control of her husband or liability for his debts, or to such person or persons as she by any writing under her hand, attested by at least two credible witnesses, shall, notwithstanding her coverture, appoint at her election ; and if the same shall not be sold in her lifetime, Samuel shall, immediately on her decease, convey the same to such person as she shall in like manner appoint, and in default of such appointment, to her right heirs. And Samuel and Thomas Learned covenant with Richardson, that Samuel and his heirs, so long as he and they shall hold the estate, shall collect the rents and income, and after deducting reasonable costs and charges, pay over the residue to Polly Jackson, into .her own hands, for her sole and separate use, half-yearly, so long as she shall live, and in such manner as not to be subject to the control or go to ,the use or be liable for the debts of Daniel Jackson, and that Samuel and his heirs shall at any time, during the fife of Polly Jackson, sell and convey the estate to such person, at such time, and for such price, as she shall, notwithstanding the coverture, by any writing under her hand, attested by two witnesses, appoint and direct, and shall pay over the proceeds, after deducting enough to pay the amount of the note to Daniel Jackson with interest.
    The defendants pleaded twenty-seven pleas, some of which terminated in demurrers, and others in issues to the country. In these last they pleaded, that Polly Jackson never directed Samuel Learned to sell the real estate and invest the proceeds ; that she did not give such a direction in writing ; that Samuel never received any money upon a sale of the estate ; that she never directed him to take any security ; that she never made an appointment whereby Samuel was required to pay or deliver over any money or security ; that no sufficient demand was ma<Je on him ; and that no demand was made on him at a reasonable time or place.
    The plaintiff produced the deed from Daniel and Polly Jackson, of May 7th, 1824, referred to in the indenture ; — also a deed from Samuel Learned to the .city of Boston, dated June 30th, 1824 ; — several accounts between Samuel Learned and Polly Jackson, and receipts by Polly Jackson ; — also the city auditor’s book, showing the amount of city stock standing in the name of Samuel, and that he received the interest upon it until January 1828, when the interest was received by Thaxter and Hunnewell.
    The plaintiff then proved by the testimony of John Tarbell, that on September 19th, 1827,'at 40 minutes past 6 o’clock, P. M., he delivered to Samuel, at Lexington, which is six miles from the place of residence of Polly Jackson and of Samuel, a writing signed by Polly Jackson in the presence of two witnesses, requesting and directing Samuel to pay and deliver over to her, for her separate use, according to his covenants in the indenture, all the moneys and securities taken by him upon the sale made by him to the city of Boston, of her share in the Philadelphia Packet wharf, after deducting her proportion of the charges and expenses of the sale, and the amount due to Samuel on account of the note for $2500 given by him to Daniel Jackson ; that it was a very dark and stormy night, and that the writ in this case was served the next morning at one minute after midnight, by attaching the property of Thomas Learned. The witness further testified, that near night the next day, when he arrested Samuel Learned, the latter said, “ I have got all the property ; I have not spent a dollar of it; it is safe.” The witness requested him to deliver it to the witness, saying that he was authorized to receive it and that all the plaintiff wanted was security ; but that Samuel refused, saying, “ I have got all the property and I will keep it.”
    Two other witnesses testified, that more than a year before the date of the written request, they heard Samuel say to Mrs. Jackson, that “he had got her property ; he intended to keep it; and he would not let her have any more than he thought proper, as he had her daughter to maintain.”
    
      Daniel Jackson, the husband of Polly, testified, that one or two days after the attachment of the property of Thomas Learned, he heard him say to Mrs. Jackson, that it was a family affair, and she had better settle it; she refused ; he urged her, but she still refused. He then repeated, you had better settle it, for from the information I get from my brother, my property which you have attached is all you will ever get, and if I had received reasonable notice, you would not have gotten that. This witness further testified, that he had often heard Samuel, both before and after the commencement of this suit, say that he had gotten the property, and that he meant to keep it; he did not mean to pay it over. On cross-examination, the witness could not say positively that he had heard Samuel make the above declarations within a year before the commencement of this action.
    The defendant contended, that the above evidence, all of which they seasonably objected to, was not competent nor sufficient to support the issues on the part of the plaintiff. But the judge ruled that it was competent for the purpose for which it was introduced, and he instructed the jury that it was such, that upon it they might find a verdict for the plaintiff. Whereupon a verdict was taken for the plaintiff by consent, subject to the opinion of the whole Court.
    
      Fletcher and H. H. Fuller, for the defendants.
    It is a settled principle, that a husband cannot be a witness in favor of his wife, whether he is interested or not ; but here the husband is interested in the result of the suit. 2 Stark. Ev. 707, 708, note 2 ; 1 Phil. Ev. (New York ed.) 57 ; Wyndham v. Chetwynd, 1 Burr. 424; Holdfast v. Dowsing, 2 Str. 1253 ; Davis v. Dinwoody, 4 T. R. 670 ; Lessee of Snyder v. Snyder, 6 Binney, 483.
    
      Jan. 19th, 1830, in Suffolk,
    
    The demand upon Samuel Learned before the commencement of the suit, was not made at a reasonable time or place. It should have been made at the place of his residence, and before sunset. The indenture requires much formality and deliberation in making the demand. If the. securities were deposited in a bank, as they ought to have been, the demand certainly was not reasonable. The officer who made it, had no written authority to receive the money or securities. The declarations of Samuel, that he intended to keep the property, did not mean he intended to embezzle it, but only to keep it pursuant to the trust. Com. Dig. Temps, D, E; 6 Bac. Abr. 31, Rent, 12 ; 1 Stark. Ev. 414, § 27, and 420, § 32 ; Co. Lit. 56 b; Fay v. Valentine, 2 Pick. 546; Tindall v. Brown, 1 T. R. 167 ; Darbishire v. Parker, 6 East, 3. If the conduct of the defendants rendered a demand unnecessary, it should have been so stated in the pleadings. 1 Chit. Pl. 317, 318, and notes.
    The manifest object of the settlement was to place the property out of the control of the husband. He received $ 2500 as a consideration for relinquishing his right over it, and the power of appointment is limited so as to prevent the wife from again subjecting it to his control. In the seventeenth plea the defendants allege, that the wife never directed Samuel to pay and deliver over the moneys and securities in such manner as that they should not be subject to the control of the husband, and the replication is, that she directed him to pay and deliver them over to her generally ; so that the appointment alleged would put the property within the husband’s power, and so was void. Clancey’s Rights of Women, 294 et seq., cites Socket v. Wray, 4 Bro. C. C. 483, and Anderson v. Dawson, 15 Ves. 536.
    If the property shall pass into the hands of the plaintiff, in what manner is he to dispose of it ? He becomes a debtor to the wife, and consequently to the husband, or if he delivers it to the wife, it will be under the control of her husband ; and so the object of the indenture will be defeated.
    
      Hoar and F. Dexter, contrà,
    to the point, that the husband was admissible as a witness, his interest being contingent, cited 2 Stark. Ev. 708 ; Filch v. Hill, 11 Mass. R. 286.
    They said the reasonableness of the demand was a mixed question of law and fact, and that the declarations of the defendants made a demand unnecessary. Newcomb v. Bracket, 16 Mass. R. 161 ; Cooper v. Mowry, ibid. 5; Webster v. Coffin, 14 Mass. R. 198 ; Clark v. Moody, 17 Mass. R. 149 ; Borden v. Borden, 5 Mass. R. 67 ; Slingerland v. Morse, 8 Johns. R. 370 ; Thomas v. Evans, 10 East, 101 ; Bowdell v. Parsons, ibid. 359 ; New England Bank v. Lewis, 2 Pick. 128 ; Shed v. Brett, 1 Pick. 412; Lempriere v. Pasley, 2 T. R. 485.
    
      April to .fi 1830, at Concord.
    
   Putnam J.

delivered the opinion of the Court. At the suggestion of the closing counsel for the defendants, we have examined this case upon its merits, arising from the true construction of the indenture upon which the action is brought.

It was contended with great ability for the defendants, that Daniel Jackson, the husband, in consideration of $ 2500 secured to him, released all his interest and control in and over the estate of his wife ; that the effect of a recovery in this suit will be, to place the trust fund in the hands of the plaintiff, who would so become the debtor to the wife, and then by the operation of the law, without any further act on her part, the legal right to the money would vest in the husband, and so the manifest intent of the settlement would be defeated : and that the same effect would take place, if the plaintiff should pay the money into the hands of the wife ; it would by operation of law become absolutely the property of the husband ; and it was strongly urged, that this would be directly contrary to the covenant on the part of the plaintiff, to use his best endeavours to have the covenants of the defendants performed ; that there is no provision requiring the plaintiff to pay out any thing, and the money would rest in his hands for his own use (which would be manifestly wrong), or as the property of the wife, and so necessarily for the use of the husband by force of the law j that the wife bad not a general, but a limited power of appointment as set forth in the seventeenth plea, viz. to be exercised always in such manner as that the money should not be subject to the control, or go to the use, or be liable to pay the debts of the husband ; and that the suit was by collusion and fraud with the husband, to enable him to get the possession and control of the property.

The nineteenth plea presents the point last mentioned, and alleges that the request and direction of the wife to pay over the money to her, &c. were obtained from her by the husband, and others, in collusion with him, by fraud, that the husband might get the possession and control. The replication avers, that the request and direction, &c., were freely made, &c., traversing, that they were obtained by fraud and collusion, &c The defendants demur on the ground that the plaintiff, in his replication, has tendered an immaterial issue. Now if that were the fact, the fault would seem to be in the plea, as containing no issuable allegation. But it is not so. Fraud and collusion might be fatal to the recovery of the plaintiff. And the plaintiff has denied them, and given the defendants an opportunity to try the truth of the matter by a jury. The defendants, without any apparent good reason, have declined that trial. So that fraud and collusion are to be put out of the case.

It was also argued for the defendants, that the husband was directly interested, for the reasons above suggested, and should therefore have been excluded from testifying. And that would be the legal result, if the positions taken by the counsellor the defendants are tenable. But after much consideration, we think the wife had a general power of appointment over the fund. We think the cases cited by the counsel for the defendants do not maintain their defence.

In Anderson v. Dawson, 15 Ves. 532, and Socket et ux. v. Wray et al. 4 Bro. C. Cas. 483, the wife, by the terms of the settlements, was to have the income of the trust fund during life, and the capital was to be transferred according to her will. The court held in these cases, that she had no power over the capital but by a revocable act, in nature of a will. But the power reserved to the wife, in the case at bar, is not so restricted. She has a power to sell the estate or not. If not sold, she was to have the income, and the trustee was at any time during her lifetime, to sell and convey the property to such persons, and for such price, as she should direct, and pay the proceeds either to her, or her appointee or appointees, for her own use, without the control of the husband. She has the power of investing the proceeds in such securities, &c., as she shall think proper, and has the same power to dispose of the securities, &c., as was reserved over the original estate. Now the jury have found, substantially, that the wife did direct S. Learned to convey the estate for $22,500 ; that he sold it accordingly and received the money, securities, &c., for the same, and had them at the time of the commencement of this action ; that she has directed S. Learned to pay over to her, for her own separate use, the money, certificates, &c., in writing under her hand, at a reasonable time and place before the commencement of the action ; that S. Learned had the money, &c., in his hands, at the time of the demand, and refused to deliver and pay it over, &c. This action is brought at the request of the wife, but in the name of the plaintiff, who must have a right to recover on these facts, provided she has a general power of appointment and there were competent testimony to support the verdict upon the issues in fact which were found for the plaintiff. But the indenture of settlement remains in full force ; the husband has consented that his wife shall have the absolute disposition of the property, without his control or the claim of his creditors. The plaintiff is to recover the money for the use of the wife, subject to her direction and appointment, when in his hands-, as it is or was when in the hands of S. Learned.

Upon that view of the case, the testimony of the husband was properly received. The recovery will not alter or affect his legal rights. It is altogether contingent, whether the wife will make any appointment in his favor, after the money shall have been recovered by the plaintiff, and without such new appointment, the husband cannot touch the property. Fitch v. Hill et al. 11 Mass. R. 286, [Rand’s ed. 287, note ;] 1 Phil. Ev. (N. York ed.) 71, and cases cited.

But it was contended, that the evidence does not prove a demand in a reasonable time prior to the commencement of the action. The demand was made at 40 minutes past 6 o’clock, P. M., when the defendant, S. Learned, was six miles from his home, and the night was dark and stormy, and the writ was served upon the other defendant immediately after midnight. Whether this proceeding were reasonable or not, must depend upon the circumstances of the case. It is proved that S. Learned declared that he had got the property and meant to keep it, and Thomas Learned said that the plaintiff would not have got the property to attach, if he had had (what he called) reasonable notice. It comes with a very ill grace from the defendants to complain of a want of reasonable notice, when the only use of more time would have been to have devised ways and means of evading payment. If a longer time had been given, it would confessedly have been employed by Thomas Learned in placing his property in such a situation as to have prevented the plaintiff from obtaining security. Besides, when the demand was made, the defendant, S. Learned, for aught that appears, might have complied, with it in an hour or two. No suggestion like that now urged was made. He did not ask for more time, but put the case upon other grounds. “He had Mrs. Jackson’s daughter to support. He meant to keep the money.” We are all satisfied from the cases cited, and the reasons of the law applicable to this subject, that this objection to the verdict cannot be maintained.

And upon the facts which have been thus found by competent evidence, and the true construction of the indenture, we are all of opinion that the judgment must be rendered for the plaintiff upon the verdict. 
      
       See White v. Holman, 3 Fairfield, 160; City Bank v. Bangs, 3 Paige, 37, 38; Webster v. Harper, 7 N. Hamp. R. 594. The decision in the case of Richardson v. Learned, is held to be of questionable authority, in 2 Phil. Ev. (Cowen &. Hill's ed.) 96, 149, 150, notes.
     