Before considering the legal effect of Samuel Comer’s letter to Geo. C. Anderson & Co., of date December 28, 1866, and the instrument signed by Harriet and Sylvester L. Comer, of date June 29, 1871, we will notice the objection that is made, that there is no proof in the record of the original execution of the one of date December 28, 1866.
The second instrument, bearing date June 29, 1871, is proven by the testimony of Lewis C. Stevenson, he stating positively that the signature thereto is the genuine signature of Harriet Comer, and the instrument is made an exhibit to his deposition, to which instrument is attached what purports to be, and what is, clearly declared to be by said instrument, a copy of the letter of December 28, 1866.
We are of opinion that this copy attached to and clearly referred to in the instrument, signed by Harriet Comer, as to her and all claiming under her, was conclusive evidence of the original existence of Samuel Comer’s letter, of December 28, 1866, and superseded the necessity of introducing any other evidence to establish it. Carver v. Jackson, 4 Pet. 83; Green-leaf on Evi., Vol. 1, Sec. 97.
The instrument executed by Samuel Comer was as follows:
“Hamilton, December 28, 1866.
“ Geoege C. Andeeson & Co.
“Gents:—Of the seven-thirty government bonds of mine in your hands, I hereby assign to my wife, Harriet Comer, six *531thousand dollars, she to draw the interest of the same, yon keeping possession of the same, and when matured to convert into five-twenty government bonds, first series, to remain in your hands, my wife to draw the interest until her death ; have no control of the principal so far as disposing of them is concerned; the bonds at my death to revert to my heirs.
“ The above assignment to take effect at my death, I controlling them in the meantime.
“(Signed) Samuel Comer.
“ Will you be kind enough to file this with my bonds?” The only difficulty in determining the meaning and effect of this instrument, exists in the clause: “The above assignment to take effect at my death, I controlling them in the meantime.”
While the whole instrument, including the foregoing clause, is not entirely clear, we are inclined to construe it to mean that Comer intended to declare the bonds in trust, first to himself to have the interest thereon during his life, next to his wife, if she survived him, she to have the interest during her life, and then the principal to revert to his heirs. That he meant by the words, “ the above assignment to take effect at my death, I controlling them in the meantime,” to vest the legal title to the bonds in George C. Anderson & Co. as trustee, for himself, his wife, and heirs, immediately, yet his wife and heirs were to take no benefit therefor, nor exercise any control over the fund or its interest, until his death. But whatever of doubt there may be as to the true meaning of this instrument, there can be none as to that of date June 29, 1871, executed by Harriet Comer and Sylvester.L. Comer, which is as follows :
“ Whereas, Samuel Comer, deceased, before his death deposited with George C. Anderson & Co. $6,000 in government bonds under the trust and conditions specified in the paper, a copy of which is hereto attached, for the benefit of Harriet Comer, his wife, during her life, with remainder of the principal to the heirs of said Samuel Comer. How, for the purpose of other and better investment and for a valuable consideration to each of us moving, it is agreed by the said Harriet Comer and by Sylvester L. Comer and Sater C. Comer, the only heirs of said Samuel Comer, that the said George C. Anderson & Co., and their successors, and all members of said firm, *532are hereby released from said trust, and the said Boner, Barclay & Co., with whom said bonds are on deposit, are authorized and empowered to deliver and pay over to the said Harriet Comer the said $6,000 of bonds.
“Witness our hands, this June 29, 1871.
“Harriet Comer, “S. L. Comer.
“(Witness) B. C. Parrott.”
To which was attached a copy of the original letter of Samuel Comer. Here was a clear recognition by Harriet Comer, of the trust created by her husband, and was binding upon her; and as Sater Comer claims the one moiety of the principal of the fund by virtue of Harriet Comer’s will, he can have no greater interest in it than she had at her death.
We are therefore of opinion that upon the death of Harriet Comer the principal of said fund vested, the one-half in Sater Comer, and the other half in the widow and heirs of Sylvester L. Comer, deceased.
It is insisted because an instrument in writing was left in the hands of Mr. Buggless, by the two brothers, as the custodian thereof, that he thereby became their agent, and when called as a witness as to certain statements of Sater, that thereby Sater became a competent witness to the same conversation and transaction by virtue of the second exception to the second section of chapter 51. We do not concur in this conclusion. Buggless was not the agent of either party in any such sense as contemplated by the statute, and it was therefore error to permit Sater to testify.
While there is some conflict in the statements proven of Harriet Comer, we are satisfied, after considering them' all, that she understood that she had but a life interest in this fund, but whether she so understood or not, would make no difference, as the rights of all parties were fixed by the original declaration of trust, and her deliberate recognition of its terms by her instrument of June 29, 1871.
The decree of the Circuit Court will therefore be reversed and the cause remanded, with directions to the Circuit Court to enter a decree in accordance with the prayer of the bill.
Reversed and rem<mded with directions.