The opinion of the court was delivered, by
Sharswood, J.It is not necessary to consider whether the plaintiff below was a competent witness to prove that to which he testified, and that for two sufficient reasons: First, that when he 'was offered as a witness and objected to — both at first and when the objection was repeated — the objection was a general one to his competency, and it is not disputed that he would have been a competent witness for some purpose. If the testimony which he gave after his admission was such as he was incompetent to give, it should have been then specially objected to, or the judge after-wards asked to direct the jury to disregard it. It would -be very unfair if this rule of practice was not rigidly adhered to ; for in this very ease, as we shall see presently, if the particular evidence had been excepted to when offered, the plaintiff might safely have withdrawn it. The second reason for not considering the question of the plaintiff’s competency, is that his testimony might all be stricken out without affecting the merits of the controversy. It must be borne in mind that this was an equitable ejectment brought to set aside a deed on the ground of legal fraud. The legal title was in the defendant. The plaintiff claimed to recover upon an equity, that under the circumstances a chancellor would set aside the deed of May 22d 1862, 'as a legal fraud upon him and declare a trust in his favor. The judge was sitting as a chancellor, and the jury merely his assessors to assist him upon the credibility of witnesses and in reconciling conflicting testimony. It was not necessary under the other uncontradicted evidence that the plain*392tiff should prove that he did not know of the deed in question before or at the time of its execution. Enough had been shown to throw upon the defendants the burthen of proving that he had knowledge of it. It was proved by Mr. Stover, without contradiction, that on the very day of her marriage, Ann Eliza Shields had called on him, requested him to draw the deed, and about an hour after executed it. Apart altogether from the fact that he stated, “ It seems to me she did say she was going to be married” — the execution of a deed without consideration on the morning of the day of her marriage, was primá facie in fraud of the marital rights of the intended husband, and devolved upon those claiming under the deed the onus of showing that it was communicated to him. It is unnecessary to pass in review the English authorities upon the subject of deeds of this character. We must consider the law in this state as settled, and well settled in Duncan’s Appeal, 7 Wright 67; and Belt v. Ferguson, 3 Grant’s Cases 259. The cases show conclusively that it is not a question of actual fraud. “Common candor,” says Mr. Chief Justice Lowrie, “forbids that so important a change in his intended wife’s circumstances and in the power over her estate, should be made without his consent, and equity sternly condemns it as a fraud upon his just expectations. This principle of equity has stood the test of experience too long to be open to dispute now.” We are very clearly of opinion that independently of the Statute of Frauds there was no evidence that Ann Eliza Shields held the property in trust, which would justify the conveyance as the fulfilment of a moral or equitable obligation.
Whether the deed itself by Ann Eliza Shields, being found to have been in fraud of the marriage, would have been a bar to a recovery by the children of the marriage, we do not deem it necessary to discuss and decide. While we entirely agree with the learned judge below that the acceptance by Mrs. Buck of the legacy bequeathed to her by the will of Ann Buck did not, under the circumstances, preclude the plaintiff, her husband, from his interest or curtesy in the property, because under the Married Woman’s Act of 1848, it was the separate property of his wife, and he could not prevent her acceptance of it, so that so far as he was concerned it was no case of election; yet the wife herself was bound; her coverture was no disability in this respect according to our own decision in Tiernan v. Roland, 3 Harris 429, supported as it is by the whole current of authorities. If she were bound, so were her children claiming by descent through her, and it follows that the verdict and judgment in their favor are erroneous. It is not necessary, however, that the judgment should be reversed on that account. The action was brought in the name of Frederick J. Buck, “ on behalf of himself and Fannie S. Buck and Lizzie T. Buck, minors, as their next friend.” They were *393not technically plaintiffs, and these words are clearly surplusage. They can be stricken out now, and we accordingly allow the record to be so amended.
The record is directed to be amended in the style of the action, and wherever else the words occur, by striking out after the name of the plaintiff these words, “ on behalf of himself and Fannie S. Buck and Lizzie T. Buck, minors, as their next friend,” and thereupon judgment affirmed.