Hopkins v. Grimshaw
165 U.S. 342 (1897)

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U.S. Supreme Court

Hopkins v. Grimshaw, 165 U.S. 342 (1897)

Hopkins v. Grimshaw

No. 18

Argued December 16-17, 1895

Decided February 15, 1897

165 U.S. 342

Syllabus

Notwithstanding the provisions of the Acts of July 2, 1864, cc. 210, 222 (reenacted in Rev.Stat. § 858, and Rev.Stat. D.C. §§ 816, 877), a widow is incompetent to testify, in a suit which she is neither a party to, nor interested in, to a private conversation between her husband and herself in his lifetime, and a conversation between them in their own home, in the presence of no one but a young daughter, who does not appear to have taken any part in it, is a private conversation, within the rule.

The rule against perpetuities is inapplicable to a trust resulting to the heirs of a grantor upon the failure of an express trust declared in his deed.

By a deed of land from a private person to three others as trustees for a particular society, not incorporated, but formed for the mutual aid of its members when sick and for their burial when dead, to have and to hold to the trustees, "and their successors in office forever, for the sole use and benefit of the society aforesaid, for a burial ground, and for no other purpose whatever," the trustees take the legal estate in fee; and when the land has ceased to be used for a burial ground, and all the bodies there interred have been removed to other cemeteries, by order of the municipal authorities, and the society has been dissolved and become extinct, the grantor's heirs are entitled to the land by way of resulting trust; and, after one of those heirs and the heirs of the trustees have conveyed their interests in the land to another person, the other heirs of the grantor may maintain a bill in equity against him to enforce the resulting trust, and for partition of the land, and for complete relief between the parties.

This was a bill in equity, filed May 24, 1889, against William H. Grimshaw, and against Mary J. Brooks, an heir of Stephney Forrest, by the other heirs of Forrest, and by "Horace S. Cummings, trustee," to enforce a resulting trust in, and to obtain partition of, land in the City of Washington, conveyed by Forrest to David Redden and others, trustees

Page 165 U. S. 343

for the Union Beneficial Society of the City of Washington, for a burial ground. The case was heard upon pleadings and proofs, and was, in substance, as follows:

By deed dated August 9, 1845, and recorded October 21, 1845, William Nolan, Commissioner of Public Buildings, in consideration of the sum of $129.93, recited to be paid by the grantee, conveyed to "Stephney Forrest, his heirs and assigns forever," ten lots, comprising the north half of square 1089 in the City of Washington.

By deed not dated, but acknowledged September 25, 1845, and recorded October 21, 1845, Stephney Forrest, for a like consideration, conveyed the same land to "David Redden, Daniel Simms, and William Barton, trustees for the Union Beneficial Society of Washington City," to have and to hold to said Redden, Simms, and Barton,

"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."

Stephney Forrest died in 1855, having been twice married, and leaving six children by his first wife, and one daughter (since Mary J. Brooks) by his second wife, Rachel Forrest, who also survived him. He was a member of the society, and the answer alleged that he purchased the land in behalf of the society, and with its money.

The only evidence offered in support of this allegation consisted of depositions of Rachel Forrest, his widow, and of Mary J. Brooks, their daughter, taken in November, 1889, the material parts of which were as follows: Mrs. Forrest testified that she was now 85 years old; that she knew her husband bought this land for the society, because, before he left home on the morning of the day of his purchase, he told her that he was going to buy the land for the society, and to get the money from the society to buy it, and came back and showed her a bundle which he said contained the money, and later in the day told her that he had bought the land for the society, and that she never talked with her daughter about this, or mentioned it to any one until the day she testified in this case. Mrs. Brooks testified that, when she was 13

Page 165 U. S. 344

or 14 years old, she heard her father, as he left home one morning, say that he was going to the secretary of the society to get the money to buy the land for the society. The plaintiffs' counsel at the hearing, objected to this testimony of Forrest's widow and daughter as insufficient to establish a trust, and to the widow's testimony, as incompetent to prove statements made by her husband to her.

The Union Beneficial Society of the City of Washington was an unincorporated association of colored persons, formed by articles of association in writing in 1841, by which provision was made for visiting sick and infirm members, and for applying to their relief money appropriated for that purpose, and for paying, upon the death of any member, certain sums out of the funds of the society "towards defraying the funeral expenses," and "to the widow, orphan children, or legal representatives, of such deceased member." The funds of the society were to be derived from entrance fees, monthly dues, and other pecuniary contributions of the members, and fines imposed upon on them for violations of the articles; and, "whilst six members of this institution unite for its continuance, it shall not be broken."

For many years after the deed of Forrest to the trustees, the land was used by the society for the burial of its members, and also for the burial of any other colored inhabitants of the city, upon the payment of certain fees. Since 1852 at least, fees so obtained, instead of being applied to the use of the society, were divided from time to time among its members. The last admission of a new member was in 1870, and the members gradually dwindled in number until 1882, when there were only three members, one being Philip Wells, its President. For the five years before 1883, there were 1,589 interments, and from January, 1883, to November 13, 1883, there were 560 bodies interred, many of them one upon another. On November 13, 1883, further interments were prohibited by the board of health, and none was made afterwards. It did not appear that, since 1887, the society did anything, kept any records, or held any meetings.

All the trustees named as grantees in the deed from Stephney

Page 165 U. S. 345

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: (1) Deeds from Mrs. Forrest and Mrs. Brooks of their interests in the land; (2) a deed from Philip Wells, the President of the society, purporting to convey all its and his interests in the land; (3) 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 $2,000.

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

Page 165 U. S. 346

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 Forrest'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.

Page 165 U. S. 347

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.

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