majority">Danforth, J.

Upon the pleadings, the issue was one of fact, whether there had been a declaration of trust, or rather whether the premises described in the complaint were held in trust for the plaintiff. The defendant was her mother, and considerable testimony was given of casual and loose conversations for the purpose of establishing the plaintiff’s demand; yet, if that testimony stood uncontradicted, it would scarcely *266create a belief that the defendant at any time sustained the character of trustee in relation to the property or ever held herself out in that light, or as .other than its actual owner. Indeed, at the conclusion of her testimony, the plaintiff’s counsel abandoned all claim to an important portion of the property, and to another portion before the close of the trial, As to the rest, the defendant so overcame the plaintiff’s case by contradictions and independent statements that the learned trial court was not led to the conclusion that the defendant was either in fact a trastee or that she had at any time declared herself to be a trustee of any of the real or personal property described in the complaint, and as to which judgment was demanded. On the contrary, he found that, as to the property on Tenth and Eleventh streets, the plaintiff had offered no evidence, and as to that and the rest of the property, the title was in the defendant, and moreover that for part of it the price was paid from her earnings and title taken in her name, with the approval of her husband; and from this it followed that neither at law nor in equity had the plaintiff any estate or interest in the premises in question. Against this conclusion the appellant struggles in vain, for her contention has no better foundation than the doctrine that by marriage the defendant’s property vested in her husband, and that after marriage her earnings belonged to him. At law and in favor of creditors there are no doubt cases where this doctrine would avail, but in equity it has been otherwise, and it is impossible to see how a mere volunteer can derive from it any support in a prosecution which, if successful, would defeat a legal estate acquired with the husband’s consent.

Upon every question involved in the merits of the case we entirely agree with the learned trial court, and in the views expressed in its opinion.* It is, however, said by counsel *267for the appellant, that the trial judge erred in excluding certain evidence offered by her husband in her behalf. He testified to an acquaintance with the defendant commencing in 1866; that he had conversations with her in 1866 and 1867, “ in reference to property,” and which, as detailed by him, were of the most general and unimportant character ; that he had correspondence with her “continually.” “I had,” he says, “ one letter in two weeks,” and remembers receiving one in the fall of 1867. These letters he destroyed in 1868, as he was about leaving Philadelphia for Hew York. He says: “I tore them up and burnt them, because I didn’t want to encumber my baggage with such a large pile of letters.” Asked, “Did you have any idea that those letters were of any importance,” says, “Ho, it never occurred to me that they were of any importance.” “ Did you give the matter of the destruction much consideration.” Answers, “Hot in the least.” Did you have any other reasons for destroying them except what you have stated? Answers “ Ho.” Being again asked, “ Did you receive a letter from Mrs. Heath ” (the defendant), “ with reference to the property ? ” Answers, “ I did.” Q. “And destroyed it under the circumstances mentioned.” Answers, “ I did.” He was then requested to state the substance of the letter, and upon objection by the defendant’s counsel, it was excluded.

We have no means of knowing either the contents of the letter, or the answer which was expected from the witness, but assuming that the answer would have been pertinent to the issue, it was for the court to determine in the first instance whether the evidence established that the letter was destroyed, and also that its destruction was not to produce a wrong or injury to the opposite party, or to create any excuse for its non-production (Jackson agt. Frier, 16 Johns., 198; Stephen’s Digest of the Law of Evidence, art. 72). This is so whether the paper was destroyed by a party (Riggs agt. Taylor, 9 Wheaton, 483; Steele agt. Lord, 70 N. Y., 280; Blade agt. Nolan, 12 Wend., 173), or a witnAs (Livingston agt. *268Rogers, 2 Johns. Cases, 488), and the sufficiency of the explanation presented a question of fact for the trial judge which this court cannot review (Steele agt. Lord, 70 N. Y., 280-283). The judgment appealed from should be affirmed.

All concur, except Tracy, J., absent.

For opinion of Van Vorst, J., see Mason agt. Libbey, special trial term, reported 54 How. Pr., 104-112.

The general term decision is reported in 19 Hun, 119-127. Judgment of special term affirmed on opinion of the learned judge below.

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