Fox v. Jones

Harrison, N. J., delivered the opinion of the court. 1. The court is of opinion that the exceptions to the depositions of Mary Fox and Mary Slack, because they were retaken without special permission from the court, is not [217] well taken. Although., as a general principle or rule of practice, a deposition once taken in a cause cannot; be retaken without a special order of the court to that effect, yet the fact that the depositions as first taken in this case were then excepted to, constitutes an exception to the rule and fully authorized the second taking. A party who has taken a deposition which is excepted to for any formal objection, is not compelled to wait the action of the court on such objection; by which (if the exception were sustained) he might not only be delayed, but even deprived entirely of the testimony of the witness should he die pending the question. He may, therefore, well assume, if he chooses, that the objection was properly taken, and proceed at once to remove it by taking the deposition de novo. 2. The court is of opinion that there is nothing in the record which shows that Mrs. Fox was the wife of the appellant, and therefore, the objection to her competency a's a witness, growing out of the fact of that relation, is not propérly a question before the court. The court is further of opinion from the evidence that, the bonds in question, although void as such at law, were a valid gift in equity from James "Wilkinson to the female appellee, who was then his wife; that the gift was perfected by delivery; that it was not unreasonable in its provisions, nor in conflict with the claim of any creditors, and .that it was founded upon a meritorious consideration, which has been frequently recognized and sustained in a court of equity. See 2 Story’s Eq., § 1374, 1375; Beard vs. Beard, 1 Atk., 72; Walker vs. Hodge, 2 Swanst. Rep., 106, 107; Lucas vs. Lucas, 1 Atk., 270, 271. The court is further of opinion that the right of a husband, either with or without the intervention of a trustee, to make a proper gift or settlement on his wife, is well established. 2 Story’s Eq., § 1380, and the numerous authorities there cited in .note 2. Whether the estate is derived from him or from a stranger, the husband during his lifetime, (if no other has been appointed,) will be treated as a trustee for her benefit; and in the event of his death, 'quoad all separate [218] personal estate derived from him during his lifetime, and which properly belongs to the wife in equity, his executors or administrators will be treated as a trustee for the wife, and enjoined from making any legal disposition of the property in contravention of the trust. No particular form of words is necessary to create a separate estate in the wife. Cl. on Iíusb. and Wife, 262; Bright’s Husband and Wife, ch. 3, § 21; Taylor vs. Stone, 13 Smeade and Marshall, 655. Although the evidence might have been stronger upon both points, yet the court is of opinion that both the fact and the identity of this gift are sufficiently established in this case to entitle the wife to her recovery. Without undertaking to settle, in this case, how far the allegations of a bill neither admitted nor denied in the answer are to be taken to be true upon the hearing, the court is of opinion that, the special allegation in this bill that there are no debts against the estate of the decedent to prevent the particular recovery which is sought for, uneon-tradicted (although unadmitted) by the answer of the administrator, whose duty it is to protect the estate for creditors, and who would be guilty of a devastavit if he did not, must be taken to be such admission of assets (at least as to him,) as to supercede the necessity of any further proof upon the subject. There is no legal presumption of indebtedness which preeludes the recognition of this gift, until an account is taken. The executor or administrator, if he chooses, may waive the necessity and expense of such an account. The plaintiff upon alleging, as she did in this case, that there were no creditors to dispute her claim, affirmed a negative proposition which she was not required to disprove, at least until denied or the contrary was asserted by the administrator or some other party in interest; which would have constituted affirmative matter to be established by a special account or other proof. The administrator not denying this material allegation must be taken to have admitted it. For these reasons, the decree of the court below must be affirmed with costs de bonis testatoris against the appellant in this court.