dissenting:
Complainant had a daughter, named Cornelia, who married one Knapp, in 1849. In April of the following year, Knapp died without issue, leaving complainant’s daughter his widow, and an only sister who had married one Hunt, surviving him. In October, 1852, his widow married defendant Newbould; and in September, 1854, she died without issue. Knapp and his sister, as heirs to their father, who died previous to 1848, claimed an interest with one Thorn in certain real estate, situate in the village of Port Huron, the legal title to which was in Thom; and a bill was filed by them against Thorn, in the Circuit Court for St. Clair county in chancery, to establish their right, as heirs to their father, to an undivided half of the property, and for a partition of it. Pending the litigation, Knapp died intestate, and his widow took out letters of administration on his estate, and was made a party to the suit in chancery; and after her marriage with defendant he was made a party. The chancery suit terminated in favor of complainants, and a partition was made of the property, a part of which rvas set off to Knapp’s estate. Afterwards in a settlement between Mrs. Newbould and Mrs. Hunt, of their respective interests in the estate of Knapp, it was agreed between them that Mrs. Hunt should convey to Mrs. Newbould a certain part of the property, and that Mrs. Newbould should quit claim her right in the rest of it to Mrs. Hunt. And on the seventh of June, 1858, the agreement was consummated by the execution of a quit claim deed by defendant and Ms wife to Wesley Truesdail, in trust for Mrs. Hunt; by a receipt in full from defendant and his wife to Mrs. Hunt and her husband, containing a covenant *69on the part of defendant and wife, to indemnify and save harmless Hunt and wife “against all claims against them or either of them, in favor of the estate of Knappand by a quit claim deed from Mrs. Hunt and her husband, to defendant, of the property Mrs. Newbould was to have. The papers all bear date on the sixth of June, but were not executed until the next day, as appeal’s from the certh ficates of acknowledgment.
In addition to the foregoing facts, the bill states, that defendant took the deed in his own name without the knowledge 'or consent of his wife, and with a view of wrongfully obtaining her property, she supposing at the time that the deed was taken in her own name; and that defendant had sold a part of tbe property to different persons, &o.
It also states that Mrs. Newbould, as the widow of Knapp, had a dower interest in a farm, known as the Cook farm, which she had sold for $500 previous to her intermarriage with defendant, and had taken in payment the purchaser’s promissory note; that this note was collected by defendant, after their marriage, and that he had not accounted for the money to his wife; and that defendant’s wife also had certain personal property (which is named in the bill) at the time of her death, of which defendant retains the possession.
That after the death of Knapp, and before his widow intermarried with defendant, complainant became indebted to his daughter in the sum of $926, Tor which he gave her his note, after her intermarriage with defendant, which note defendant has in his possession; that defendant also holds a note given to him by complainant for $1086.76^ 100, and that on the 5th September, 1851, defendant brought a suit on the two notes against complainant, in the Circuit Court for Wayne county.
That on the death of Mrs. Newbould, intestate and "without issue, complainant became entitled, as heir, to all *70her real estate, and to all of her personal estate, as next of kin, under the statute of distributions; and, wishing to avail himself of all the remedies the law gives him, as heir and distributee, for the recovery of the real and personal estate of his late daughter, he had taken out letters of administration on her estate, and in the language of the bill, claims and insists, that, as administrator of the estate, he is entitled to demand and receive all the goods, chattels, credits, choses in action, and effects of whatever nature and description, which were of said Cornelia H. Newbould, during her lifetime, and also such as may have been acquired since her death, which belonged to her said estate; and he also, as heir at law and distributee, claims and insists upon all rights and remedies to which he may be legally entitled, through the said administration or otherwise.
The bill further states, that finding the estate of Knapp had not been settled by his daughter, as administratrix, and that there were claims against it that had not been paid, he had taken out letters of administration de bonis non bn that estate also, which he claims the right to represent, as well as all rights in the premises to which he may be entitled by law.
The bill waives an answer under oath, and prays defendant may account for and pay over to complainant the proceeds of such parts of the Port Huron property as have been sold by him, and that he convoy to complainant what remains unsold; that he pay to complainant the moneys he had received on the note given Mrs. Knapp before their intermarriage for her right of dower in the Cook farm; that he deliver up to complainant the two promisory notes on which he had brought suit in the Circuit Court, and the. personal property in his possession that belonged to his wife at the time of her death; with a prayer for an injunction staying the suit at law.
An objection is taken to the bill for multifariousness, *71in the answer, which claims the same benefit of the objection as on demurrer.
A bill when multifarious is so for one of two reasons; either because of a misjoinder of parties, complainants or defendants, or a misjoinder of distinct and separate matters of equitable cognizance, between the same parties, of so dissimilar a character as to render it unfit they should be litigated in the same suit.
A and B having separate mortgages against C, can not unite in filing a bill against C to foreclose them, any more than they can unite in a suit at law for the money due on the bonds accompanying their respective mortgages. The reason of the rule is the same in both cases — the want of a joint interest in the subject matter of the suit. Neither can A file a bill against B and C to foreclose separate mortgages given to him by each. The bill in such case would be multifarious for a misjoinder of defendants, us in the previous case for a misjoinder of complainants. Neither will the rules of pleading permit A to unite in one bill the foreclosure of a mortgage, and the specific performance of a contract for the sale of real estate. Such a bill would be multifarious, not for a misjoinder of parties, but of distinct matters of equitable cognizance, which the law will not allow to be united in one suit.
But when a bill contains two separate causes of action, one equitable, the other legal, it will not be treated as multifarious, as the court has but one matter before it to adjudicate, the other belonging to a court of law. — Knye v. Moore, 1 Sim. & Stu. 61; Dew v. Clark, 1 Sim. & Stu. 114; Varick v. Smith, 5 Paige, 137; Story’s Eq. Pl. §283.
I have bee7i led into these general remarks relative to niultifarioiisness by the anomalous character of the complainant’s bill. I felt strongly disposed to treat the bill as filed by the complainant in his own right only, and not in both his individual and representative capacity: 1st. *72Because the commencement of the bill, the prayer for relief, the prayer for process, the process itself, and the proceedings in the court below, are all in the name of Austin Wales, and not of Austin Wales, administrator, or Austin Wales in his own right and as administrator. Your orator, Austin Wales, complains; not Austin Wales, administrator. Relief is asked to your orator, that is, Austin Wales; and not to your orator Austin Wales as administrator, or to your orator Austin Wales in his own right and as administrator. So with the prayer for process. It is to grant to your orator the People’s, writ of subpoena, and the subpoena commands defendant to appeal- and answer to a bill of complaint exhibited against him by Austin Wales. The bill, answer, replication, depositions of witnesses, and all the orders entered in the cause with one exception, and the decree dismissing the bill in the court below, are entitled in a cause in which Austin Wales is complainant, and Alexander H. Newbould is defendant. And 2d. Because the only matter stated in the bill, cognizable in equity, is the charge of fraud, in defendant’s taking the deed to the Port Huron property in his own name instead of the name of his wife. As to the personal property, and the money received on the dower note, complainant, as administrator, has a clear and adequate remedy at law. He has also, according to his own showing, a good defense at law to the note given by him to his daughter on which he is sued in the Circuit Court. By proving the note belonged to his daughter at the time of her death, and his administration on her estate, he would show the right to it in himself as her personal representative. The real estate of decedent is differently situated. It belongs to complainant by descent; and if defendant is guilty of the fraud charged, he might, in his own right, file a bill for the proceeds of such parts of it as have been sold, and for a conveyance of the residue.
Neither party, however, took this view of the bill on *73the argument. Both parties treated it as a bill filed by complainant in a triple capacity; that is, in his own right, and as administrator on his daughter’s estate, and administrator de bonis non on the estate of Knapp. In this view of the case, I feel no hesitancy in saying, the bill in my opinion is clearly multifarious, and that the court below was right in dismissing it on that ground.
It will not for a moment be contended, that if A had taken out letters of administration de bonis non on the estate of Knapp, and B had administered on the estate of Mrs. Newbould, that A and B could have united with complainant in the present bill. The case is not altered by the fact that complainant is administrator on both of these estates; for each estate is as distinctly and separately represented by him as it would have been had administration been granted to another.
In equity, as at law, individual and representative rights are not allowed to be united in one suit, as it would, as in other cases of multifariousness, lead to .all the confusion and uncertainty that would attend the trial of two or more separate causes at the same time, involving different parties, different interests, different pleadings, different defenses, and different testimony, with different questions of law.
The multifariousness of a bill, when there is a misjoinder of complainants, does not consist in the number of complainants, but in defendant being called on to litigate separate matters in different rights in the same suit.
It can not be said complainant in his own right alone is interested in the property of the two estates; for it is stated in the bill, and proved by testimony, that there are outstanding debts against each. But admitting him to be alone interested in the property; that there are no creditors; and that as heir and next of kin he is entitled to what belonged to his daughter at the time of her death — it is no more or better reason for sustaining the present bill, than *74it would be at law, for uniting in one action ejectment, trover, and assumpsit for money had and received, to effect the same object.
The answer admits the agreement between Mrs. Hunt and Mrs. Newbould, the execution of the quit claim deed by defendant and his wife to Truesdail, in trust for Mrs. Hunt; and the execution of the deed from Mrs. Hunt .and her husband to defendant; and then states that the last mentioned deed was made to the defendant, with the knowledge and at the request of his wife, for the purpose of vesting the title to the land absolutely in defendant as a gift from his wife.
By a statute passed in 1844-, the real and personal estate of a married woman, whether acquired by her before or after marriage, with the profits and income thereof, are not to be liable for her husband’s debts, engagements or liabilities, but are to continue to be her property to the same • extent as before marriage, except that she can not give, grant or sell it during coverture, without the consent of her husband. — Comp. L. p. 965. And with the consent of her husband, in writing, she might dispose of it by last will and testament.— Comp. L. p. 863.
By our present Constitution, made and adopted in 1850, “the real and personal estate of every female, acquired before marriage, and all property to which she may after-wards become entitled by gift, grant, inheritance or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations or engagements of her husband, and may be devised or bequeathed by her as if she were unmarried.” — Mr#. 16, §5.
And by an act passed in 1855, such property may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her, in the same manner and with the like effect as if she were unmarried. And actions may be brought by and against her in relation to such pro*75perty, in the same manner as if she were unmarried. — Comp. L. p. 966.
This last act was passed after the execution of the deed to defendant, but the only essential difference between it and the act of 1844, is, it dispenses with the consent of the husband to a sale of the wife’s property by her,
At common law, the personal property of the wife became her husband’s on their marriage, who also thereby acquired an interest in her real estate, during their joint lives, with the rights of a tenant by curtesy in case of issue and the death of the wife in the lifetime of the husband. These rights of the husband, in the property of his wife, are taken away by the statute, which gives to the wife the same rights, in all respects, over her property after as before marriage. It was so held by this co.urt in Starkweather v. Smith, 6 Mich. 377.
In the State of New York there is a similar statute, differing somewhat from ours, and in Graham v. Van Wyck, 14 Barb. 531, it was held a married woman could not convey to her husband her right of dower in his estate. The decision was made at a special term, held by a single .justice. The court admitted the language of the statute was broad enough to admit of the conveyance; but, as by their statute, it was in terms provided the wife should not take a conveyance of property from her husband, the court held he should not take by conveyance from her. Perhaps as it was the wife’s right of dower in her husband’s estate, that had something to do with the decision. In a subsequent case, Vartie v. Underwood, 18 Barb. 561, the right of a wife to convey to her husband was clearly recognized. The husband and wife had mortgaged a piece of property, in which the wife had a separate interest from her husband. It was afterwards sold, and. the surplus money, after paying the mortgage debt, was brought into court, where it was claimed by the husband’s creditors, on the ground that, as it was provided in the mortgage in *76case oí a sale that the surplus should be paid to the husband, the wife had given her interest in the property to him. The court say, “That direction in the mortgage, in reference to the surplus, can scarcely be construed into an agreement between husband and wife, by which the latter transfers, or agrees to transfer, her interest to him for the benefit of his creditors generally.”
In Durfee v. McClurg, 6 Mich. 223, a majority of this court held it competent for a married woman to give her separate property to her husband. The case was this? complainant, her husband uniting with her, assigned a mortgage belonging to her to defendant, and delivered the mortgage and assignment to her husband. The assignment was absolute on its face. Her husband took the mortgage and assignment, and delivered them to defendant, as security for money borrowed of him, and took back a receipt in his own name, showing the nature of the transaction between them. By a subsequent arrangement between them the mortgage was absolutely transferred to defendant. Complainant afterwards filed her bill, stating the assignment by herself and husband was to secure a debt her husband was owing defendant, and that the debt had been paid,, and asking to have the mortgage re - assigned to her. The decree of the court below dismissing the bill was affirmed, on the ground that the assignment of the mortgage was, absolute on its face, and that there was no evidence showing complainant did not intend by the assignment and the delivery of it and the mortgage to her husband, to give her interest in the mortgage to her husband. The gift was not proved, but implied from the fact that the assignment was absolute on its face, and other circumstances attending the transaction.
In a case in New York, under their statute, more recent than those I have referred to, it was held, that the statute-gives to a married woman the same rights over her separate property at law that she previously had in equity.. *77And where husband and wife lived on a farm, belonging to the latter, which was cultivated by the husband, and there was no evidence of any agreement between them for the use of the farm, the use of it was presumed to be a gift from the wife to her husband, and personal property purchased with the proceeds of the farm was held to belong to the husband and not to the wife. — Gage v. Dauchy, 28 Barb. 622.
A feme covert is regarded in equity as a feme sole, as to her separate property, which she may dispose of without the consent or concurrence of her trustee, unless specially restricted by the instrument under which it is acquired. Jaques v. Methodist Church, 17 Johns. 548; North American Coal Co. v. Dyett, 7 Paige, 9. She may give it to her husband by will, and to enable her to do so it is not necessary the legal estate should be vested in trustees; but an agreement entered into before marriage, w^fch her intended husband, that she should have power to dispose of her real estate, during coverture, will enable her to do so. — Bradish v. Gibbs, 3 Johns. Ch. 523. And a bona fide contract in regard to it, between husband and wife, will be enforced in equity. — Livingston v. Livingston, 2 Johns. Ch. 537.
In Jaques v. The Methodist Church, the power of disposition by a married woman of her separate property was fully considered, and it was held that she might give it to her husband, as well as any other person, if her disposition of it was free, and not the result of flattery, force, or improper treatment, which are not to be presumed. They were not in that case, and I think should in no case be presumed ; but, on the contrary, to avoid her conveyance, should be proved, either by direct testimony, or by such surrounding circumstances as would induce a belief of their existence. There are husbands that would not hesitate to resort to improper means to obtain their wife’s property, but they are exceptions to the general rule; and if the rule was the *78reverse of what it is, would-always be found within the pal© of the law, panoplied with its formalities.
The object of the statute, it seems to me, is not to disturb the unity of the marriage relation, by requiring husband and wife to keep up a separate interest in their property, but to render it more happy — not so much in shielding the wife against the dishonesty of her husband towards her, which the law never presumes, but the contrary — as by protecting her against his creditors, his business misfortunes, and his follies.
The bill seems to have been Famed with reference to some such rule as the one I have stated. It states a case of actual, and not of constructive fraud. A case showing corruption — an evil intent of the heart; not one, although free from the taint of corruption, that the law will not tolerate without some explanation, on account of the facilities it would otherwise afford for covering up actual fraud.
It* charges defendant took the title to the Port Huron property in his own name instead of his wife’s, without her consent, and contrary to her expectation, and in fraud of her rights. And to sustain the charge states, that the deed to Truesdail, the trustee for Mrs. Hunt, was executed by Mrs, Newbould and defendant at Detroit, and delivered by Mrs. Newbould to defendant to take to Port Huron, which is some sixty miles or thereabouts from Detroit, to be there delivered by him to Truesdail and Mrs. Hunt, in exchange for the deed to be received from Mrs. Hunt and husband, and that defendant, in making the exchange, procured the last mentioned deed to be made to himself The bill does not state, in express terms, that the deed from Mr. and Mrs. Hunt to defendant was made out at Port Huron; but the legitimate inference to be drawn from its language, and the one that irresistably forces itself on the mind, is, that it was made out at Port Huron after defendant arrived there with the deed executed by himself and wife ; that the deeds were exchanged there,. *79and that Mrs. Newbould had not an opportunity of seeing or knowing the contents of the deed from Mr. and Mrs. Hunt, when it was executed and delivered.
Now what are the facts? For if the charge be true, it gives a coloring to the case that should be effaced by explanatory evidence, on the part of the defense. It is met and most unequivocally and positively denied by the answer (which, although under oath, as the oath is waived" must be regarded as a pleading only), and is not sustained by a particle of evidence.
The answer states that all of the papers were executed and delivered, at the same time, in the city of Detroit. And of the truth of this statement, in the total absence of evidence to the contrary, I think the deeds themselves, copies of which are annexed to and made a part of the bill, with other surrounding circumstances furnished by the bill, and .such geographical facts as the court may take notice of, are ample proof.
Defendant and his wife, and Truesdail the trustee, resided in Detroit, and Mrs. Hunt and her husband at Sandwich, some two or three miles below Detroit, on the opposite or Canadian side of the river. Both deeds are dated on the 6th June; both witnessed by the same persons, one of whom took the acknowledgments of all the parties; and both, as appear from the certificates of acknowledgment, were executed and acknowledged on the íth June, in the county of Wayne in which Detroit is situated, and not in in the county of St. Clair, in which Port Huron is situated. And it appears from a note of erasures and interlineations at the bottom of the deed from defendant and wife, that the name of David Smart was erased and that of Truesdail inserted as trustee for Mrs. Hunt, after the deed was drawn on the 6th June, and before it was executed on the next day or '7th June, In these facts furnished by the bill — aside from the absurdity of the parties going sixty miles away from home, to Port Huron, to do what *80would better be done in the city of Detroit — we have prima facie evidence of the oneness of the transaction, and of the presence of all the parties, and of the implied assent, at least, of Mrs. Newbould to the deed to defendant; for it is not to be supposed she was ignorant of tho true nature of the transaction. Besides, Mrs. Newbould did not die until the 2'Tth January, 1855, more than a year and a half after the transaction; and yet we have no evidence of any complaint ever made by her to any one in regard to the deed. We can not suppose her ignorant of its true character all of this time, when wo take into consideration that there was nothing secret in the transaction, and that what was done was done openly, and in the presence of relatives who knew the real character of the deed, and who were interested in her welfare.
But we are not under the necessity of relying on circumstantial evidence alone to show there was nothing wrong on the part of defendant, even if the law requires explanatory evidence at his hands, which I think it does not. Mr. Davidson, a witness for defendant, says Mrs. Newbould told him repeatedly, in her lifetime, that she had placed the title of the Port Huron property in defendant to make it his. I see nothing- improbable in his testimony; he stands before us unimpeached, and as fair as any other witness in the case. And if I did, I should be forced to give credit to his statement, corroborated as I think it is by the circumstances I have stated, one and all of which tend to prove a gift of the property to defendant.
There is nothing in the case showing the improvidence of such an act on the part of Mrs. Newbould. There is no evidence her husband was not in every way worthy of the gift; that he was unkind, or in embarrassed circumstances, or improvident, or that there was aught else threatening to mar their connubial happiness.
The Port Huron property, and the money collected by defendant on the dower note, and used by him as his *81own, with his wife’s knowledge and without her dissent, I think belong to defendant. The piano, and note for $926 and other personal property, belong to the administrator. I understand Davidson’s testimony as referring to the Port Huron property only. The possession of the note is not evidence of a gift. It would not be in any case, without something more; but more especially in the present case, as it is a note given by a father to his daughter, which places it on a somewhat different footing from the note of a third person.
I think the decree of the court below, for the reason I have stated, should be affirmed.
Cheistiancy J.:As to the note of one thousand and eighty six 70-100 dollars, given by complainant to the defendant, we are all agreed the complainant is entitled to no relief.
It is not necessary to determine in this case what would have been the proper decision upon the question of multifariousness, whether relating to subject matter or to parties, had the defendant chosen to risk the result of the objection upon demurrer. He would then have been entitled, not only to whatever might be found substantial in the objection, but to any advantage which might be found in any technical rule upon this subject.
Every ground for this objection appears upon the face of the bill; but the defendant did not see fit to risk his case upon a demurrer: the parties have taken issue upon the facts; testimony has been taken, and they have gone to a hearing upon the merits. Under these circumstances the objection, so far as regards the defendant himself, must, I think, be regarded as entirely waived. Such, upon principle, I think should be the rule, and it is well supported by authority.— Story’s Eq. Pl. §284; Ward v. Cook, 5 Mad. 122; Whaley v. Dawson, 2 Sch. & Lef. 370, 371; Nelson v. Hill, 5 How. 127. And see Abbott v. Johnson, *8232 N. H. 9, where the objection Avas taken by the answer as in the present case, and as the grounds of the objection appeared upon the bill, this rule Avas held to apply. And the rule applies equally where the objection is the misjoinder of parties complainant.— Story's Eq. Pl. § 544.
Doubtless the court may take the objection sua sqoonte, though ivaived by the defendant; but it could only be justified in doing this Avhere it should be found impracticable, from this cause, to make a proper decree doing justice betAveen the parties; or, perhaps, where it should satisfactorily appear that the defendant has been embarrassed or otherwise prejudiced in his defense. But no one, I think, can fail to see that the defendant has neither been embarrassed nor prejudiced in this case from this cause; nor has the ingenuity of astute counsel been able to suggest any plausible difficulty of this kind. And, unless it shall be found impracticable to render a decree which shall do justice betAveen the parties, it would be Avantonly multiplying suits, and would operate oppressively upon both parties, to require a separate suit (if such wore practicable) in each of the capacities in which the complainant claims.
I can see no difficulty in this case in making such a decree, and in disposing of the Avhole controversy as between the parties before the court. What this decree should be, will depend, in a great measure, upon the question whether the defendant has sustained his defense by proving a gift of the property to himself. This question I shall discuss in its proper place: but for the present, it is sufficient to say that the bill, answer and proof, indepennent of the question of gift, show clearly the right of complainant, as heir or distributee, to all the property, subject however to administration on the estate of Mrs. Newbould, and most of it also to administration on the estate of L. Knapp. Complainant’s claim, as heir or distributee, is in no respect inconsistent Avith, but subordinate to, and dependent upon *83his claim as administrator. The same may be said of his claim as administrator of Mrs. Newbonld in its relation to that of administrator on the Knapp estate; and he is himself the administrator of both estates.
As against complainant, in his capacity of heir or distributee, the gift from the deceased to the defendant, if a valid gift be proved, is a complete bar; but it would constitute no bar as to creditors of the respective estates. The right of the administrator, however, to recover against the defendant might, if the gift be shown, be confined to the amount of such debts, as suggested by my brother Manning, and perhaps to the amount which might have been duly proved in the Probate Court or before commissioners on the respective estates.
But if the defendant has not succeeded in establishing a valid gift of the property to himself, then it was the property of the deceased at the time of her death, and the defendant has shown no right to, or interest in it whatever; while the complainant, in his several capacities, represents the entire title. And, as against one having no right in the property, the complainant, as administrator alone, without reference to his individual rights as heir or distributee, is, I think, clearly entitled to the whole; and it was unnecessary to have claimed as heir or distributee, though this claim can do no harm, as the decree would be substantially the same.
The administrator is the person by law entitled to the possession, and entrusted with the management of the property, whether real or personal. — Comp. L. § 2904. Ho is required to make and return an inventory of all the property, rights and credits of the deceased, which may come to his knowledge — Comp. L. § 2898; for the return of which and for the proper administration of all such property he gives bond to. the Judge of Probate — Comp. L. §§2865, 2880; he is chargeable with the same in his account — Comp L. §§ 2977, 2978; and is responsible for the disposition thereof, and *84for negligence in collecting the same,&c.— Comp. L. §§ 2979 to 2990 inclusive. After the completion of the administration, the payment of debts and expenses, and certain allowances for minor children, the widow, &c., the residue is by a decree of the Probate Court to be distributed to such other persons as are by law entitled thereto.— Comp. L. § 2992.
In the hands of the administrator the property is in the custody of the law, and as against him, no other can have a rightful custody.
If the defendant has no rights in the property, it is wholly immaterial to him in which of his various capacities the complainant is entitled to it, or whether in all, or how much of it in one and how much in another, so that complainant shows a right to the property in any or all the capacities in which he claims, and so that the decree shall fully protect the defendant from all liability to account again for the property. Nor is it necessary for the court, under such circumstances, to determine how much of it belongs, or may ultimately be found to belong, to the one estate and how much to the other, nor what shall1 be the amount of the residue for distribution, nor to whom it shall be distributed. These are questions which the Probate Courts, in which the estates are to be administered, are fully competent to decide.
It would be extremely unwise, and would lead to inextricable confusion, for the Court of Chancery, even if it had the power, thus to take the administration- of the estates out of the hands of the Probate Courts where they are now pending. But I am by no means prepared to admit that the Court of Chancery has any such power under our system.
It is sufficient for this court to determine the questions in controversy between the parties before it, without undertaking to follow this property into the hands of all those who may eventually become entitled to it in the course *85of administration, or by descent, purchase, or otherwise.
If, then, no valid gift has been shown, the property in the defendant’s hands (with the exceptions to be hereafter specified) must, I think, be considered as having been obtained by a constructive fraud — Story's Eq. Jur. §§187, 259, 313 to 315; Hill on Trustees 159, 160; and to constitute a trust in the defendant’s hands, for which he is liable in equity to account to the complainant who represents the rights of the deceased. The laws of the land will attach to the property in complainant’s hands, and the courts of Probate, where all questions touching its administration and distribution properly belong, will administer the law. All this court can properly do, in the present case, is to enforce the account, and to .place the property in the hands of the complainant, subject to administration on the respective estates, in the proper Probate Court, so far as the same may, by law, be liable to such administration, and the residue to be distributed in that court according to law.
This decree will end the controversy between the parties before the court, and, when complied with, will exonerate the defendant from all liability to either estate, to the complainant and to all other persons, and from all liability upon his indemnity to Mrs. Hunt. And 'to this decree I think the complainant is entitled, unless it shall be found that a valid gift has been shown.
But it is urged that the complainant, as administrator of the Knapp estate, has no right to call upon the defendant in a court of equity for the proceeds of the lands obtained under the compromise with Mrs. Hunt; because that compromise was void as against the administrator, and he has a remedy at law by selling the land itself — as well that released to Mrs. Hunt as that conveyed to defendant — as if no compromise had been made.
This objection comes with an ill grace from, the defendant, who was a party to the compromise, who took the *86title to himself, has sold the land to others and received the proceeds. He is not entitled to insist upon this objection. But if it appeared in the case that the debts against the Knapp estate were so large as probably to exhaust the whole property, and that the lands had been sold for less than their value, it might raise a serious question (which the court might be bound to notice) whether the administrator could waive his right against the land itself, and elect to take the proceeds.
But the defendant denies that the debts against that estate exceed twenty-five dollars; and all that the proof is claimed to show is some five hundred and fifty dollars; and, from the length of time which has elapsed, there is no probability that there can be any others — if in fact all others are not barred by the statute. This amount, compared with the whole proceeds of the property, is very small; and there does not appear to be the remotest probability, if indeed a possibility, .that the whole can be required for the payment of debts. On the other hand there is nothing in the case to indicate a suspicion that the lands have been sold by the defendant for less than their real value, nor any probability that .such is the fact, On the contrary, having been at liberty to take advantage of the market, without being restricted to a public sale at a particular time and place, as an administrator must have been, the probability is that he has sold them to a better advantage than an administrator could have done.
Under these circumstances, though the administrator might have a strict legal right to resort to the lands instead of the proceeds, yet it would be unjust and inequitable in the extreme to disturb the compromise after the lands have passed into other hands, and would be likely to lead to much useless litigation. It would therefore be violating the plainest principles of equity, for the court to refuse the claim for the proceeds upon this ground.
But, it is objected that, as to the note of nine hundred *87and twenty-six dollars given by complainant to Mrs. Newbonld, and the piano and other specific articles of personal property, the Court of Chancery has no jurisdiction, as there is a complete remedy at law. As to the note, it is said that by proving it to have been hers at the time of her death, and that complainant was her administrator, he would establish a full defense in the suit at law. Whether this defense could be rendered available, in the action at law against him individually, under all the circumstances, I shall not stop to inquire, because a full defense on his part in the action at law does not constitute a full and adequate remedy. As administrator on the estate of Mrs. Newbould, he is entitled to the note itself. — Story’s Eq. Jur. § 703.
But, as relates to the specific articles of personal property, the piano, paintings, &c., which seem to have been left in the defendant’s hands only by the death of his wife, •and not obtained by him through any agency or special •confidence, I think there is a complete and adequate remedy :at law, by an action of replevin or trover; and if any discovery were required, the statute gives to the complainant •a full and adequate remedy for such discovery in the Probate Court;— Comp. L. §§2905, 2906; though it seems to give no power to enforce the delivery of the property or writings of which the discovery may be there enforced. I do not think the jurisdiction of equity can be maintained in respect to this property, on the ground of discovery alone, as the oath of the defendant is waived; nor consequently on the ground of any relief which might be merely incidental to such discovery. — Gomp. L. §3485. Nor will equity .maintain a bill for the delivery of specific articles, except upon peculiar grounds, not stated in this bill: nor do I think the bill in respect to this property can be maintained on the ground of an account merely. In fact I can see no ground upon which the rights, of the parties in respect to this personal property could be litigated in a court of *88equity; and if the defendant had set up any claim, to it, or had disputed the title of the complainant, I should have been compelled to hold that no relief could be given to complainant in respect to this property in this suit. But as the complainant’s title to this property is not disputed, and the defendant has claimed no interest in it, there would seem, upon general principles, to be no good reason why the complainant should be turned around to a suit at law for its recovery. But I have had some doubts upon the question of the jurisdiction of equity to enforce its delivery, and these doubts are not entirely removed; though I am inclined to the opinion that the jurisdiction may be maintained; and I therefore concur in the result upon this point with the Chief Justice.
I proceed now to inquire whether the defendant has succeeded in establishing a valid gift. This being set up by the defendant, and constituting in fact his sole defense, the burden of proof is upon him to establish the gift. His answer (the oath being waived), is but a ple'ading, and the question must be decided by the evidence alone. And if, previous to and at the time when the gift is claimed to have been made, the defendant stood in the relation of an agent to his wife, or any position of trust and confidence in relation to this property calculated to make her disregard the dictates of ordinary prudence, and to omit that circumspection and those safeguards usual in dealing with others, and to trust the management of her property and her interests to him; then he stood in a position which the law recognizes as peculiarly liable to abuse, and which, of itself, casts suspicion upon any purchase he might make or gift he might receive from her during the continuance of that confidential relation; and, therefore, in such case, it will not be enough for him to show a formal gift, but he must also show affirmatively the fairness of the whole transaction;, that there was no undue influence, misrepresentation or imposition ; in short, that the confidence reposed in him has not, *89been abused. If he does not do this, the property will be considered as having been obtained by a constructive fraud. Welles v. Middleton, 1 Cox, 112; Gibson v. Jeyes, 6 Ves. 278; Ormond v. Hutchinson, 13 Ves. 51, 52, 58; Story's Eq. Jur. §§ 307 to 316; Id. §187; Hill on Trustees, 159, 160.
Now, as far as the Port Huron property is concerned, it is, I think, clear, as well from the nature of the transaction, as from the direct testimony of E. A. Wales and Mr. Backus, that, in the making of the compromise, the defendant was acting as the agent of his wife. She was not present, but remained at Detroit while this arrangement was made at Port Huron. By this arrangement, which constituted the compromise, the property was to be conveyed to Mrs. Newbould in fee. The deed however, when subsequently made, is found to have been made to the defendant, and not to his wife. When the arrangement was made by which the deed was to be given, E. A. Wales, her brother and her counsel, was present; but he does not appear- to have been present when the deed was made, or to have known that it was made to the husband. Nor does it appear that the person who drew the deed, nor those who certified this or the other deed, nor the officer before whom both were acknowledged, knew why the deed was made to the husband, instead of the wife. Prima facie, at least, under such circumstances, the deed made to the husband must be held to have been in trust for the benefit of the wife. And, under all these circumstances, it is not too much to say that, to establish this conveyance as a gift, the evidence should be above all suspicion, clear and satisfactory. As the deed was to have been made to Mrs. Newbould, and she, and not her husband was the person in whose right it was obtained, it is but reasonable and natural to infer, that if she intended this conveyance from other parties as a gift from her to her husband, she would have manifested that intent at *90the time, either by some instrument in writing (which was the most obvious way) or by instructions to the person who drew the deed, or, if she was present when the deed was executed, that she would have declared the intent to the witnesses or to the officer who took the acknowledgment, or to some other person cognizant of the transaction (and if not present no inference can be drawn against her from its execution), or that she would have taken some means at the time to show at least that she was aware of the fact that the deed was being made to her husband and not to herself. If she is to be supposed •to have known the legal effect of the transaction, she must be supposed to have known that, if it were left to stand upon the deed alone to which she was not a party, without anything to show her assent, it would constitute a trust to herself and not a gift to her husband.
The fact, that the defendant has not seen fit to call the person who drew either of the deeds, nor the witnesses to either, nor the person before whom they were acknowledged, nor any other person who participated in any part of the transaction, or was cognizant of it, or likely to have any personal knowledge of the facts; that he has not attempted to show why they were not called; that he relies solely upon evidence of casual conversations purporting to have been held by her without any apparent object, with a citizen of Albany, only occasionally in the state, who knew nothing of the transaction itself, and this after (it does not appear how long after) the transaction was completed — these facts, in connection with the nature of the transaction itself, and the defendant’s confidential relation, though not absolutely conclusive against the idea of a gift, must at least be held to cast a very perceptible shade of suspicion upon this defense.
No species of testimony is more easily fabricated than that of admissions or declarations like those testified to by Davidson: and the value of such evidence — especially when *91we are compelled to judge of it by written deposition, without seeing or hearing the witness himself — must always depend much upon the nature and circumstances of the case, and much also upon the facilities which it affords for contradiction, if false. Here the party whose declarations purport to be given was dead before the testimony was taken, and can therefore neither contradict nor explain, nor afford to others any means of explanation or contradiction, however easily her knowledge of the facts might have enabled her to do so, if alive. This consideration, as it takes away much of the substantial benefit of a cross-examination, should make us still more cautious of giving implicit credit to the testimony.
But independent of all the grounds of suspicion already enumerated, the matter of the testimony itself does not appear to me to be such as to command implicit belief. It discloses no special reason why the statements should have been made to him more than to any other person of her acquaintance. The language of her conversation, in reference to the gift, strikes me as more full and formal than would ordinarily be used by a woman under such circumstances, and resembles quite as much the formal language of a legal instrument, or a pleading in chancery, as that of ordinary conversation. The language comes as fully up to the requirements of the whole case, legal inferences and all, as if it had been a formal declaration, or admission made with express reference to the pending litigation. But, while it shows no very satisfactory reason why so formal a statement should have been made to him at any time, it entirely fails to show or to suggest any reason whatever why she should have held the same conversation with him and told him the same thing “ twenty times''' over, and (as I understand the testimony) on as many different occasions. Does not this look like an attempt to add force and emphasis to the testimony? and, as such, does it not, in fact, tend to weaken it? Are we to sup*92pose, for instance, that after she had already told him the the same story nineteen times, she had forgotten she had ever told him at all? or that she supposed he had forgotten it, or did not believe it? If this testimony be true it would seem to indicate that she was in the habit of talking a great deal and remembering very little: and yet he says, “she was not in the habit of talking much.” Does it add anything to the probability of the testimony that no one was present at any of these repeated conversations, except the deceased and the witness himself? He does not intimate that these things were told him as a secret.to be confidentially kept, nor that she wished him to be the special witness for the proof of the facts. But he thinks she never told him these things in the presence of her husband, nor can he give any instance in which any of these conversations took place in the presence of any one else. It is therefore impossible to contradict him, if false, especially as he is very indefinite as to time, and she is long since dead. He says the conversations were introduced by talking about defendant’s affairs, and about his own. If he was as communicative as he represents her to have been, and repeated over the same full statement of his own affairs to her as often as he represents her to have repeated that of her own to him, it would seem that these private sessions must have been pretty exclusively confined to the discussion of business affairs: and yet no special reason is given why she should be particularly interested in his affairs, or he in hers; and all these business discussions, so far as appears, were without any adequate object. True he says he “ knew her and was intimate with her and her family” — still he does not seem to have been so intimate With her as with her husband. He calls his intimacy with the defendant an “extreme intimacy,” says it was even greater than with his own brothers, and that he told the defendant of these conversations with his wife during her life.
Granting that it may be usual or customary for a *93business man to be discussing bis own business affairs and those of his intimate friend with the wife of that friend, in the absence of her husband and of every body else, and then communicating to the husband what she had said — which may sometimes happen, though it should not be customary — still I can not but think it somewhat extraordinary, that those discussions should always bring up the same transaction, and elicit the same declarations on twenty different occasions, and that without any apparent object, and when the declarations, according to the testimony, do not appear■:,;to have been a subject of doubt or dispute.
I do not mean to say that any of the features of this testimony which I have noticed, or all of them combined, are at all conclusive of the question of their truth or falsehood. I may have attributed to them too much significance. But I have endeavored to present them exactly as they have'operated upon my own mind. The testimony may all be true. But it can not be denied that it has many of the ear marks which we should expect to find in testimony fabricated for the occasion. And I can only say that it does not appear to me to be such clear, unsuspicious and satisfactory testimony as the nature of this case requires to establish the gift, and that it has failed to produce upon my mind a conviction of its truth. And I can not resist the conclusión that, to establish a gift from a wife to her husband by such testimony, in a case like the present, would in many eases be practically equivalent to a repeal of the statute which secures to the wife her separate property.
I must therefore concur in the result with the Chief Justice, and the decree must be entered according to the directions contained in his opinion.
Campbell J., did not sit in this case, having been of counsel.