
    Frederick Zinke, Resp’t, v. The Estate of Elizabeth Zinke, Deceased, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Principal and agent—Proof.
    Agency may be established by acts, declarations and conduct of the principal and agent, and it may also be inferred from circumstances.
    .3. Same—Husband and wife.
    If a married woman authorizes her husband to look after her separate estate, and he advances money for making improvements upon her property and in paying her debts, he should be reimbursed out of her estate, the same as her other creditors.
    3. Witness—Section 839 of the Code.
    Testimony by a claimant in an action against decedent’s estate, that he paid certain debts of decedent’s while acting as her agent, does not relate to personal transactions with decedent.
    Appeal from a judgment, entered upon the report of a referee in favor of the claimant.
    
      William A. Douglass, for app’lt; Charles Daniels, for resp’t.
   Davy, J.

This was a reference, under the statute, of a disputed claim against the estate of Elizabeth Zink, deceased, who was the wife of the respondent. His claim is for money expended during the years 1888,' 1889, and 1890, upon the separate estate of his deceased wife, amounting in the aggregate to $2,066.72, from which sum a credit was allowed of $800 for rent for the use of his wife’s premises, leaving a balance of $1,266.72, over and above the admitted offset for rent. The claim was disputed by 'the executor, and, by an agreement in writing, under .the statute, the matter was referred to a referee to hear and determine the same, who, after taking all the testimony that was offered by the respective parties, reported in favor of the respondent for $1,025.-21, including interest. Jugment was entered for that sum on the report of the referee, in the clerk’s office in Erie county, and from thht judgment the executor has appealed to this court.

It appears from the evidence that in 1888 the testatrix commenced the erection of a brick building on East Genesee street, in the city of Buffalo, under a contract with Jacob Jaeckle & Go. for $4,455. The contractors did not quite complete the building, and the testatrix had no money to pay for additional services and materials. The respondent, who acted as her agent, paid for the same, including the interest on certain mortgages upon the property of the testatrix, the taxes upon her real estate, the insurance upon her building, and also a promissory note given by her.

There can be no question but what the testatrix had the power to employ her husband to act as her agent in matters pertaining to her separate business, and the fight to reimburse him for all moneys expended by him for the benefit of her estate. It is claimed, however, that the respondent’s authority to act for his wife is not established by the evidence, unless it can be inferred from his testimony. The language of section 829 of the Code of Civil Procedure prohibits the respondent from testifying to any personal transactions or communications between himself and his deceased wife ; but this section does not prohibit him from testifying to extraneous facts. If the authority to act as her agent rested solely upon the inference drawn from the character and nature of his testimony, then the evidence would fall short of establishing such agency, because it must be shown by testimony other than his own. As bearing upon this point, it is proper to take into consideration her statements to parties who presented their bills for payment. She frequently refused to pay them, on the ground that she did not have the money, and referred them to her husband, who afterwards paid them.1 These voluntary statements upon her part tended to show that he was acting as her agent, and authorized to pay her bills.

The question of agency may be established by acts, declarations, and conduct of the principal and agent, and it may also be inferred from circumstances. The manner in which a party treats one who apparently acts as his agent, and holds him up before third parties, will, in many cases, be sufficient to establish an agency. As was remarked by Judge Earl, in Ackley v. Westerveil, 86 N. Y. 448, there can be no reason why a contract implied by law inferred from the circumstances should not be just as effectual to bind a married woman as one expressly created. “It is no longer open to dispute in this state that a married woman, although she carries on no business on her own account, and has no separate estate is liable, like a feme sole, for debts contracted in the purchase ‘or leasing of real estate or other property." Under the present laws of this state, a married woman is completely emancipated from the marital relations, so far as concerns her separate property, and the tendency of the judicial decisions is to make her more independent in her property relation, and to hold her more strictly to her contracts. The law not only now gives her the right to hold and enjoy a separate estate from her husband but to carry on a separate business and she can manage her estate and carry on her separate business, personally or through such agency as she may elect, and for that purposeshe may appoint her husband. There can be no good reason why, if a married woman authorizes her husband to look after her separate estate, and he' advances money for making improvements upon her property, and in paying her debts, he should not be reimbursed out of her estate, the same as her other creditors. Such a contract, at common law, was held good, if made by a trustee for the wife’s benefit, and it ought to be sustained in equity, when made between husband and wife, under our statute. The provisions of the statute providing for references of claims against the estate of deceased persons are so broad as to include claims legal and equitable. 3 Eev. St. (6th ed.) p. 96, §§ 46, 47; Skidmore v. Post, 32 Hun, 54.

The respondent’s case is within the general rule of equity. A portion of the improvements that were made' upon the testatrix’s separate estate were paid for by him at the request and approval of his deceased wife. The advances were clearly for the benefit of her real estate. They increased its value, and were permanently beneficial to it. Judge Dauforth, in discussing this point in Noel v. Kinney, 106 N. Y. 78; 8 St. Rep. 575, says:

“ The respondent proved that his wife was the principal, and that he was her agent. The bills-which the respondent paid were for improvements to her real estate. It would be unjust to permit the estate to escape paying for these improvements simply because the debts were paid by the testator’s husband.”

The referee had power to consider the respondent’s clajms, even though they were of an equitable nature. The right of the husband to maintain an action in equity to recover for money paid out for his wife was sanctioned by the house of lords in Butler v. Butler, 14 Q. B. Div. 831. It was held that loans made and money paid by the husband for his wife constituted a right of action in his favor, in equity, against her, and her separate estate was held liable to him.. The decision was affirmed on appeal. 16 Q. B. Div. 374. The court held that in -whatever the wife undertook to do in regard to her separate estate she was a feme sole, and that her husband had a remedy against her in the court, of chancery. The case of Smith v. Smith, 125 N. Y. 225; 34 St. Rep. 857, was an action brought-by the husband against his wife to compel her to convey to him certain real estate of which she held the title, or to have a lien in his favor declared thereon for expenses made for erecting a building upon the premises with her knowledge and consent. The court held that he was entitled to a lien for the amount expended.

The learned counsel for the appellant contends that the objections to the evidence given by the respondent, that he paid for the plans for the Grenesee" street building, and for papering the rooms, and interest on the savings-bank mortgages, and the taxes, and the money from which he made these payments was earned in' his business, should have been sustained, on the ground of its incompetency, under section 829 of the Code of Civil Procedure. I do not agree with the learned counsel in his contention upon this point, as he did not refer to any personal transactions with the deceased. The payment of the bills with his own money were independent transactions,'in which the deceased did personally participate. Mortimer v. Chambers, 43 St. Rep. 365; Denise v. De nise, 110 N. Y. 562; 18 St. Rep. 873. In the case of Truesdell v. Sarles, 104 N. Y. 164 ; 5 St. Rep. 566, Judge Finch, in discussing the evidence that was objected to in that case, says :

“We are still of the opinion that the two facts related were independent facts, in which the deceased was not personally a participant, and which if living, he could not for that reason have contradicted. They might have been done without his authority or knowledge, as were some of the other acts of the plaintiff, and did not necessarily involve a personal transaction with him.”

The learned counsel for the executor also contends that the saloon business was hers. The evidence, however, does not warrant us in reaching that conclusion. The respondent proved, by the brewers and dealers who supplied the saloon with the liquors, that the bills were charged to him and paid by him, and that the saloon licenses were issued to him. The executor, upon the trial, gave no proof that the testatrix furnished the money to pay any of these claims or demands, and it will not do to assume that the respondent might have paid them -with her money. Such an assumption is clearly overcome by the fact that she was obliged to give a note -for the balance due on the building contract, and from her statement that she did not have the money to pay the bills when they were presented to her, and directing the parties to see her husband. The fact that he paid the bills with his own money was substantially proved by her own acts and admissions. The testimony is sufficient, in our judgment, to sustain the findings of the referee.

The judgment, therefore, should be affirmed, with costs against the appellant to be paid out of the estate.

All concur.

Judgment affirmed.  