The opinion of the Court was drawn up by
Whitman C. J.— This case is now before the Court, the third time, upon exceptions to the ruling of the Judges presiding at the trials. Upon the exceptions taken at the first trial, it was decided, 15 Maine R. 429, that a donatio causa mortis is good, although of a chose in action, accompanied by a mortgage as collateral security therefor; and notwithstanding it were in trust for the benefit of others besides the donee. This decision was made upon the review of the authorities, then brought to the notice of the Court, which were somewhat in conflict with each other, and is sustained throughout by the case of Coutant v. Schuyler, 1 Paige, 316.
It is now contended, that such donation could not be made to a feme covert; and much less to the wife of the maker of the note and mortgage; and especially without his consent, which, it is contended, was not obtained in season, if at all, to render it effectual. The jury, however, under the instruction of the Court, seem to have found, that his consent was obtained, and in due season; and if they had not, his consent may *189well be presumed, as the donation was tantamount to a release to him of one quarter part of the debt due from him.
That a feme covert might be the recipient of such a donation we cannot doubt, provided her husband was consenting thereto. A trust estate is under the control of a Court of equity ; and the execution of the trust could, as well be enforced, if in the hands of a married woman, by bringing her husband into Court with her, as if it were in the hands of any one else. A single woman may surely take an estate in trust; and, if afterwards married, the execution of the trust might be enforced against her and her husband.
We cannot see that the circumstance, that the husband was the debtor in this case should make any difference. He was in effect the cestui que trust as to one quarter part of the debt, and, as to the other, he, with his wife, were the trustees. The debt might, by the operation of the principles of law and equity, be considered as virtually cancelled as to him, and the fund as in his hands for the benefit of the cestuis que trust; and he and his wife might compel the payment of the residue for the same purpose.
It is further insisted, that Charles Sidlinger, the husband of the donee, renounced the trust and tendered the notes and mortgage to the plaintiff, which, although at first refused, were afterwards received by the plaintiff; and that thereby the trust, if any existed, was annulled. It does not appear in the report of the evidence, or in the deposition relied upon for the proof, why or for what purpose the tender was made, or why it was refused. It appears however, that the plaintiff then had an action of trover, pending against the defendants for the note and mortgage, and the tender might have been made, and it is not improbable that it was, with a view to an effect upon the decision of that cause, favorable to the defendants; and may have been refused from an apprehension that it would be likely to have some such effect. The parties were, at the time, in a state of warfare, and might on either hand conduct unadvisedly. It does not seem to us that this transaction, *190under all the attendant circumstances, was deserving of much consideration.
The Judge at the trial, upon this point, charged the jury in substance, that if the donation had once vested, for the benefit of the cestuis que trust, it was out of the power of Charles Sidlinger to alienate it to their prejudice; and we are satisfied that this instruction was correct. The jury seem also to have found that the donation was made in the last sickness of the deceased, that the note and mortgage were actually delivered over at the time, and with the consent of the husband of the donee.
But it is urged that the witnesses who were admitted to testify in the cause for the defendants, after filing releases, should have been excluded. To us it seems, that, after filing their releases, if they had any interest, it was in favor of a recovery on the part of the plaintiff. They had released all their claims excepting to a distributive share of what the plaintiff might recover. Their only interest, then, was that he should recover.
Judgment on the verdict.