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Opinion of the Court.

DISTRICT OF COLUMBIA v. HALL.

APPEAL FROM THE COURT OF CLAIMS.

No. 619. Submitted January 4, 1897. - Decided February 15, 1897.

District of Columbia v. Johnson, 165 U. S. 330, approved and followed.

THE case is stated in the opinion.

Mr. Assistant Attorney General Dodge and Mr. Special Assistant Attorney Howard for appellant.

Mr. Edwin Forrest for appellee.

MR. JUSTICE PECKHAM delivered the opinion of the court.

This is another of the same character of actions as those above disposed of. Hall was one of the contractors for doing work of the same nature, and filed his petition under the act of 1880 in December of that year. In that petition he alleged that he had done certain work and that he was paid for his work, under his contract, by certain certificates which were worth only fifty per cent of their face value, and which he consented to receive only at that rate, and he asked for judg ment for the other fifty per cent of his contract price. He failed in the primary object of that suit, but he did recover on some other ground a small judgment of about one thousand dollars, which was entered June 1, 1885. Subsequently, and in pursuance of the act of 1895, he applied for a new trial for the purpose of claiming the "board rates" compensation for the work done by him at contract prices, under circumstances mentioned in the foregoing cases. The Court of Claims gave judgment in his favor for that difference between the two rates, and found that under the true intent and meaning of the acts of 1895 and 1880 the sum for which it gave judgment "became due and payable on the 1st of January, 1877," which was the date when the plaintiff had completed his work under the contract. 31 C. Cl. 376.

Opinion of the Court.

For the reasons mentioned in the foregoing cases, the judgment of the Court of Claims in this case must also be

Reversed, and the cause remanded for further proceedings not inconsistent with that opinion.

DISTRICT OF COLUMBIA v. DICKSON.

APPEAL FROM THE COURT OF CLAIMS.

No. 620. Submitted January 4, 1897. — Decided February 15, 1897.

District of Columbia v. Johnson, 165 U. S. 330, approved and again followed.

THE case is stated in the opinion.

Mr. Assistant Attorney General Dodge and Mr. Special Assistant Attorney Howard for appellant.

Mr. V. B. Edwards for appellee.

MR. JUSTICE PECKHAM delivered the opinion of the court.

In this case, which is of the same general nature as the foregoing cases, the petitioner, who was the assignee of one of the contractors, filed his original petition in the Court of Claims December 15, 1880. The case, after being heard, was submitted to that court on the 26th of May, 1882, and was by it dismissed on the 29th of May, 1882. On the 6th of April, 1895, the judgment was vacated and a new trial granted by virtue of the act of February 13, 1895. 31 C. Cl. 399. The difference between the contract price and the board rate price was claimed, and Dickson, as assignee, was allowed to recover $1386.30 for such difference, belonging to him by virtue of the assignment, and which sum the court held to have "been due and payable June 2, 1873, within the meaning and intent of the act of February 13, 1895, and the act of June 16, 1880."

Statement of the Case.

For the same reasons as given in the foregoing cases, this judgment of the Court of Claims must also be

Reversed, and the cause remanded with the same directions as in the other cases.

HOPKINS v. GRIMSHAW.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 18. Argued December 16, 17, 1895. - Decided February 15, 1897.

Notwithstanding the provisions of the acts of July 2, 1864, cc. 210, 222 (reënacted in Rev. Stat. § 858, and Rev. Stat. D. C. §§ 876, 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

Statement of the Case.

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 eighty-five 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 thir

Statement of the Case.

teen or fourteen 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 provisions were 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 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 1589 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 were 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 Steph

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