
    Case 50 — PETITION EQUITY
    November 21.
    Veal’s Adm’r v. Veal.
    APPEAL PROM PAYETTE CIRCUIT COURT.
    Execution op Note by Husband to Wipe. — The husband having received his wife’s share of her father’s estate, and executed to her his note for the amount, must be regarded as holding the fund in trust for her separate use; and as the trust relation continued until his death, it prevented the running of the statute of limitations. Therefore, the note, was properly allowed as a debt against the husband’s estate, the plea of limitation not being available, although more than fifteen years had elapsed since its execution.
    BEAUCHAMP & ALLEN por appellant.
    An agreement between husband and wife of such a character as that alleged in this case may ho evidenced by a promissory note in connection with other evidence tending clearly to show it, but the note alone is not sufficient evidence of the alleged agreement.
    The case of Maraman v. Maraman, 4 Met., 76, commented on.
    KINKEAD & D ABN ALL por appellee.
    1. The note given by the husband to his wife for the proceeds of her estate in lands and slaves created a trust in her favor, and the husband continued to be a trustee for the wife during coverture. (Ward v. Croty, 4 Met., 60; Maraman v. Maraman, 4 Met., 84; Latimer v. Glenn, 2 Bush, 536; Bryant v. Bryant, 3 Bush, 156; Campbell v. Galbreath, 12 Bush, 459; Thomas v. Harkness, 13 Bush, 23; Campbell v. Campbell, 79 Ky., 399.)
    
      : 2. As the note created a continuing and subsisting trust, which could he enforced only in equity, the statute of limitations did not ran. (Gen. Stats., chap. 71, art. 4, sees. 2, 20; Bohonnon v. Streshly, 2 B. M., 437; Heinrich v. Bobinson, 7 Dana, 166; Matson v. Matson, 4 Met., 264; Clay’s Adm’r v. Clay, 7 Bush, 98.)
   JUDGE HOLT

delivered the opimos op the court.

October 1, 1865, Dora Yeal executed to Ms wife, the appellee, Susan Yeal, Ms promissory note for two thousand two hundred and fourteen dollars and seventy-eight cents, due one day thereafter. The consideration is not recited in the note. It says “for value received of her.” He died testate in 1888. He devised to her what the law gave her merely, and to three of Ms several children the entire remainder of his estate. The will makes no reference to the note. The administrator, cum testamento annexo, brought this action to settle the estate. The appellee, being made a defendant, asserted the note by a proper pleading. Her answer, among other matters, avers that, about the time a suit was brought to settle her father’s estate, her husband agreed with her, if she would allow him to receive what would be coming to her from it, he would hold it in trust for her, and as her separate estate, free from marital rights upon his part; that there was adjudged to her in said suit as a distributee the sum of two thousand two hundred and fourteen dollars and seventy-eight cents; that by reason of the •agreement she, by an answer, consented and requested that the money be paid to her husband; that the Master’s report, filed in the cause, shows that the money was received by her husband, and that in evidence of the agreement, he executed to her the note.

The record of the suit to settle her father’s estate was referred to as a part of her answer, and by a consent order, made in the court below, was made an exhibit in this one. It is not copied, however, in the transcript for this appeal.

The appellant has chosen to bring up a part of the record.* This he may do, but at his peril. We must, therefore, assume that all of the averments of the answer, relative to what is shown by the record of the old suit, would be sustained by it, were it a part of the record before us.

The reply denies that the agreement named between the appellee and her husband was ever made, and pleads the statute of limitation in bar of any recovery upon the note. A demurrer to it was sustained, and a judgment rendered allowing the note as a debt against the estate.

It is evident the estate is solvent. No question is, therefore, presented between the widow and creditors, and the inquiry as to error is confined to a consideration of the pleadings, the note and its legal effect.

It may now be regarded as a settled rule in this. State that such an agreement as that relied upon by the widow will be upheld in equity against the heirs or distributees of the husband, and, under proper circumstances, against even his creditors. (Maraman’s Adm’r v. Maraman, 4 Met., 84; Latimer, &c., v. Glenn, &c., 2 Bush, 535.) It must of course be sufficiently established. Here it is urged that the words used in her answer setting forth the agreement having been denied by the reply, the demurrer to it was improperly sustained, and evidence was necessary in support •of her plea. In short, that the case should have proceeded to a trial upon testimony. The reply, however, by a failure to deny admits the appellee was the wife of the decedent; the amount coming to her from her father’s estate; the receipt of it by her husband, and the execution of the note to her. This admission ipso facto establishes a trust in her favor. These admitted facts in and of themselves declare that the husband held the fund for the wife. No other reasonable interpretation can be given to them. They indubitably fasten a trust character upon the transaction. He certainly intended something by the execution' of the note. It was certainly designed to have some effect. No satisfactory reason can be given for its execution other than that he intended the fund represented by it to remain the separate estate of the wife. If this had not been the purpose, and the parties intended it to become the property of the husband, then no note would have been given. As between the husband and wife, it was not necessary that the note, in order to create in her a separate use, should contain words to that effect, and the only reasonable construction which can be put upon the admitted facts is that the parties to the transaction designed a separate use in the wife. The presumption arising from them is conclusive. In and of themselves they establish it. This being so, the plea of limitation is not available. ' The husband is to be regarded as a trustee of the fund for the wife. He held it for her sole use. This fact he recognized by the receipt of it and the execution of the note to her, and this trust relation continued until Ms death, and prevented the running-of the statute. (Matson v. Matson, 4 Met., 262.)

The demurrer to the reply was, therefore, properly sustained, and the judgment allowing the note as a debt against the estate is affirmed.  