Page:Federal Reporter, 1st Series, Volume 10.djvu/63

 PULUAM V. PDLLUM. 61 �under the ■will. The most that is or can be claimed by the plaintifif under this contract is the power to dipose by will of $10,000 of the testator's estate. If that is to be secured, possibly the only way would be, as claimed by the plaintiff, to set apart the amount at ■ interest, pay the interest to the residuary legatees, and grant leave to the plaintiff 's appointee after her death to apply for the f und. I shall reserve all the questions arising about this contract till the coming in of the master's report, and if it shall then appear that there will be any fund in the hand of the executor this can be determined. �The defendants file a cross-bill, in which they allege that during the late war their father was possessed of some $20,000 or $30,000 of gold coin, which he buried for safety near the residence of the plain- tiff 's mother, in an adjoining county to Fayette county, where their father and these defendants lived, but in the state of Mississippi ; that this money has been fraudulently appropriated by the plaintiff; and that she should be held to account for it to them in this suit. , If we admit as competent all the proof offered on this subject, it ialls far short of even tending to show that the plaintiff possessed herself of any of her husband's buried treasure, if such he had at his death. It is plain that much of the proof, if not all of it, by which it is sought to charge her with this gold, is wholly inadmissible. It consists entirely of declarations of her husband that he had gold buried of which she knew, most of them made when she was not present ; and if she were present and heard such declarations, she would not be bound by them, and her knowledge of its hiding place would not prove that she appropriated it. It is incredible that twenty-five or thirty thousand dollars of gold should be buried, not far from the residence of these defendants, by their father, and they not make any further effort to recover or trace it than they are shown by this record to have made, if they believed it was there at the time of his death. The proof of any admissions by her of a knowledge of this gold is unsatisfactory, and it is not shown that she ever admitted that she got it. Her husband's statements that he had such gold, and had buried it where his wife and her brother eould find it, will neithei prove as against her that there was such hidden treasure within her power, nor that, taking advantage of her knowledge, she took it into her possession. 1 Greenl. Ev. § 185, note 2; Smith y. Scudder, 11 S. & E. 325 ; Birdseye v. Flint, 3 Barb. 500; 1 Greenl. Ev. §§ 197, 197a, 199, 200. The duress of the rela- tion of husband and wife will often secure aequiescence in the false stalements of each other. She accounts for the money shown to ��� �