ness. Palmateer v. Tilton. While the supplement of 1880 (P. L. of 1880 p. 52) to the act concerning evidence provides that "In all civil actions in any court of law or equity of this state, any party thereto may be sworn and examined as a witness, notwithstanding, any party thereto may sue or be sued in a representative capacity," It also provides that the supplement shall not extend so as to permit testimony to be given as to any transaction with, or statement by, any testator or intestate represented in such action. It is true the testimony under consideration is not strictly within the language of the act, for Mr. Allen was not the testator, but it is within its spirit and meaning. In Colfax v. Colfax, 5 Stew. Eq. 206, the prohibition was held to apply to a case where heirs-at-law were sued for specific performance, and it was there said that the proviso was intended to protect the estates of deceased persons against the substantiation of claims by the oaths of parties prosecuting or defending suits directly affecting the estate. Also, that the object of the legislature, in making the proviso, was to guard against the injustice which would arise from a want of mutuality in the exercise of the right to testify in one's own behalf. While in this case Mr. Allen was not, as before remarked, the testator, he was his representative, clothed with power to dispose of his estate. Many of the evils to be apprehended from permitting one who presents a claim against the estate of a decedent to substantiate it by his own testimony, as to the statements of, or his transactions with, the deceased, are to be apprehended from permitting one who makes a claim to that estate, based on the agreement of the deceased executor, to testify in his own behalf to the statements of, or his transactions with, the executor in the matter. It must be held that the prohibition extends to such cases. The contrary construction would leave an estate which has been in the hands of a trustee who has died, subject to be charged by false allegations of contracts of sale, or other disposition or encumbrance, to the disadvantage of those interested therein, upon the mere oath of the claimant, which there would be no means of controverting, Palmateer v. Tilton. because of the death of the trustee. Striking out of the record the testimony of Amos Palmateer on the subject of the agreement, there is no proof to sustain it. George C. Allen, son of the executor, indeed, swears that his father sold a piece of land of the Harvey estate, on the west side of the turnpike, to Amos Palmateer; that the latter then paid to his father money-$25on account of the purchase, and that his father gave Palmateer something in the way of a writing, but he does not know what the paper was. He says his father wrote the paper, and that it took him only about two or three minutes to do it. Ezekiel C. Allen, another son, who was present, testifies to the fact that Amos Palmateer on that occasion came to see his father to purchase land of the estate of Harvey, and he says he supposes and has no doubt it was land on the west side of the turnpike, but he knows nothing of the payment of any money, or the giving of any receipt or paper by his father. It should be stated that Amos Palmateer testifies that on that occasion he bought from Mr. Allen five lots of the estate, on the east side of the turnpike, for $100, and paid $25 on account of the purchase-money, and took a receipt therefor drawn and signed by Mr. Allen, which he produces. George C. Allen speaks of only one sale, and of the payment of only one sum of money, and of the giving of but one paper. The receipt for the five lots consists of but seven lines, and may well have been the paper which George says his father wrote in two or three minutes. It is not at all probable that Mr. Allen could have written the receipt which Amos Palmateer swears he gave him for the land on the west side of the turnpike, in two or three minutes, or any such very short time. According to Amos Palmateer's testimony, it contained a carefully worded description of the land, or, at least, of the lines constituting three sides of it, and it must have been twice as long as the receipt just spoken of. Here it may be remarked that the receipt for the land on the east side is for $25, and provides for the payment of the balance of the purchase-money in one year, and for the delivery of the deed on the payment thereof. A few words may be said in regard to the testimony of George C. Allen as to the land which was sold by his father, as executor, to Amos Palmateer v. Tilton. Palmateer. He says it was on the west side of the turnpike, but he only knows of one sale, and there was a sale of land on the east side made at that time on which, as before stated, $25 were paid and a receipt given. It is quite possible that that is the transaction of which he speaks, and that he is in error as to the location of the land. John Palmateer, one of the complainants, testifies that the same evening in which Amos went to Mr. Allen's to buy the lot (on the west side of the turnpike), Amos showed him a receipt for $25 paid on account of the purchase-money of that land. He says he cannot remember how the receipt read, nor what it contained, but he remembers that it was for $25, and that they were to have the deed inside of a year. He further says that he never saw the receipt after that night. He does not say and it does not appear that he knew the handwriting of Allen. Nor does he say in whose handwriting the receipt was, nor that it purported to be signed by Allen. It may be added that he is incompetent as a witness, for the reason before stated in connection with Amos's testimony. William C. Kelly, the brother-inlaw of the complainants, also testifies to the receipt. He says he saw it two or three days after the purchase was made; that it was on a piece of paper about three inches wide and seven or eight long; that Amos Palmateer handed it to him and he, Kelly, remarked "It is the old Quaker's [meaning Mr. Allen's] writing," and Amos said that he, Amos, wrote it himself, and that Allen called up his sons and daughters to witness the transaction. This paper was not the one of which Amos speaks, for Amos swears that Allen wrote and signed that receipt, while the receipt which Kelly saw and read was written by Amos, as the latter himself told him. Kelly testifies that he does not know Allen's signature; that he never saw it, except on that occasion. The proof of the contract is insufficient. There is, in fact, no competent evidence of it at all. The bill will be dismissed, with costs. Cuming v. Robins. JAMES R. CUMING, trustee &c., υ. BRIDGET ROBINS et al. General, indefinite verbal statements by a trustee are insufficient to fasten the trust funds upon his individual real estate. Bill for relief. On final hearing on pleadings and proofs. Mr. C. T. Cowenhoven, for complainant. Mr. J. H. Stone, for defendants. THE CHANCELLOR. The object of this suit is to obtain a decree declaring that certain real estate in Middlesex county, described in the bill, and of which Wright Robins, deceased, late of that county, died seized, is trust property. John Robins, late of the city of New York, deceased, by his will, after directing payment of his debts and funeral expenses, and giving a legacy of $5,000, and directing his executors to sell his real estate, and ordering that the proceeds be deemed part of his personal estate, directed that his personal estate thus increased be divided into nine parts, one of which he gave to his niece, Maria Robins, and another to his niece, Caroline Robins, afterwards McClure. By the codicil to the will he revoked those gifts and gave one of the shares to his executors, in trust, to invest it and apply the interest or income thereof to the use of Maria for life, and at her death divide and pay the share, with all unappropriated income, to his then living nephews and nieces, the issue of any deceased nephew or niece to have his or her share; and, on further trust, in case of Maria's death before his decease, to pay over the share in like manner. And he gave the other share to his executors on like trust for Caroline for life, with like disposition in case of her death. He Cuming v. Robins. appointed his brother Nathan and his nephews, George W. and Wright Robins, executors. The two latter alone appear to have acted. The will was proved in New York. George had the shares of Maria and Caroline in his hands up to his death, and after that his executors paid them over, October 12th, 1868, to Wright. The principal of the two trusts appears to have been about $320,000. Maria died in 1871. On her death Wright paid over to all who were interested in her share, except Theodore and Margaret Robins, two of the children of her deceased brother Amos, their portions thereof. He died March 10th, 1882. Caroline McClure is dead also. She died on or about December 1st in the same year. The complainants in this suit are Wright Robins, successor in the trust, and the persons entitled in remainder to the McClure trust fund. The bill states that up to and prior to his death, Wright Robins was embarrassed in his affairs, and, as the complainants are informed and believe, lost by stock speculations and otherwise all or the greater part of the McClure fund and the undistributed part of the other; that when he received those funds he was possessed in his own right of a large estate, and, as the complainants are informed and believe, disposed of a large portion of that property and of a large portion of those trust funds also, and that all that is left of either his private property or the trust funds is now "represented" by several parcels of real estate in and about Metuchen, in the county of Middlesex, a portion of which he mortgaged; and that the value of the entire property held by him at the time of his death will not exceed the sum of $50,000; that when demand was made upon him for "the evidence or security of the trust funds," he stated that all the property in and about Metuchen in his name was "the security or property held in trust by him for the payment of the trust funds," and that it was "of the funds so held in trust by him." The defendants are his executrix and his widow and children and the testamentary guardian of his minor child. The bill originally embraced the undistributed part of the Maria Robins fund, but it was, on motion of the complainants, before the hearing, dismissed, so far as regards that fund, which |