
    JAMES L. WILSON AND PETER DAVISON, ADMINISTRATORS DE BONIS NON WITH THE WILL OF FERDINAND SHIBLA ANNEXED, v. MILTON ELY, SURVIVING ADMINISTRATOR, &c., OF JOHN ELY.
    1. F. S. devised and bequeathed to his wife, D., the use of all his estate during her life ; and directed that after her death, the estate should be sold, and the proceeds divided among certain persons named in the will. The widow, D. was sole acting executrix of the will. She afterwards married .1. Ii., who received from her, at different times, moneys belonging to the estate of If. S., deceased, and gave receipts therefor as moneys of the said estate. Held, that D.’s being entitled to the use of the moneys during her life, did not destroy the trust character in which she, as executrix, held the money, and that J. E. was bound by the same trust.
    2. Trusts are enforced against one who comes into possession of the property bound by the trust, with notice of the trust.
    
      3. The statute of limitations does not run against trusts.
    4. The presenting, by a complainant in chancery, to the administrator of an estate, a claim for which the intestate was bound as trustee, is no reason why the suit in this court to enforce the trust should not proceed.
    Ferdinand Shibla died March 25fch, 1827, leaving a will, by which he gave, devised and bequeathed to his wife, Deborah, the use and enjoyment of all his estate, real and personal, during her natural life; and directed that after her decease, all the rest and residue of his estate, both real and persona], should be sold, and the proceeds thereof, together with all other estate he might be entitled to on debts to be received or otherwise, should be divided among certain persons in the will named ; and appointed his said wife and John I. Little executors of his will. The widow alone proved the will and acted as executor. The inventory of the personal estate of the testator amounted to $1304.40; it was not exhibited in the cause; and it did not appear of what the persona] property consisted. On the 11th of February, 1840, the widow intermarried with John Ely.
    The bill charges that he, in right of his wife, possessed himself of the whole of the said real and personal estate of the testator. After the marriage, Ely gave to his wife, the said Deborah, the following receipts or certificates: one, dated April 1st, 1830, by which he acknowledges to have received from her $100, “ the money of her former husband;” one dated May 27th, 1830, for $53, “ being moneys of'her former husband;” one dated April 8th, 1831, for $400, “being moneys of her former husband, which said moneys is to be paid to her for her said use;” one dated February 23d, 1832, as follows : “ I have in keeping of my wife, money of her former husband, $212.”
    John Ely died October 20th, 1830, intestate, leaving the said Deborah him surviving.
    Milton Ely, the defendant, is the surviving administrator of .the said John Ely, deceased. Deborah Ely died intestate, August 10th, 1842. The complainants are the administrators de ■bonis non, with the will of Ferdinand Shibla annexed.
    The bill prays that the defendant, Milton Ely, surviving administrator of John Ely, deceased, may be decreed to account •for the personal estate of the testator, Ferdinand Shibla, which. came to the possession of said John Ely and Deborah his wife, or either of them, and for the rents and profits of the said real estate.
    The answer says that the defendant is informed and believes that the money for which the said certificates were given, together with about $40 included in a note given by Jeremiah Newman ¡o-the said John Ely, by the advice and consent of the said Deoorah, is the whole amount of moneys which the said John Ely received of the estate of the said testator, F. Shibla, for all which sums he accounted to the said Deborah, as the defendant is informed and believes.
    The answer denies that John Ely, from his marriage to his death, or at any time during his life, occupied the real estate of the said testator, or received the rents and profits thereof and converted the same to his own use. The defendant submits to act in the premises under the direction and indemnity of the court.
    The answer sets up the statute of limitations, and also that there is a defence at law.
    By a supplemental answer, the defendant says that, under an order of the Orphans’ Court of Monmouth, he has sold all the -estate of John Ely, deceased, real and personal; that among the claims presented to him against the estate of John Ely, deceased, is the demand of the complainants in this cause, and that the settlement of this claim, as well as others, is now pending undetermined in said Orphans’ Court, and that he is satisfied, and therefore charges, that the estate of said John Ely, deceased, is insolvent.
    
      D. B. Ryall, for complainants.
    He cited 3 Johns. Ch. 190; 4 Ib. 136; 1 Ib. 52, 119; 10 Johns. Rep. 495.
    
      Wm. L. Dayton, for defendant.
   The Chancellor.

The receipts or certificates given by John Ely to his wife, show that the moneys therein stated to have been received by him from her, were, the moneys of the estate of the testator, Ferdinand Shibla. Deborah, the wife of Ely, was the executrix of Shibla’s will, and as such, held this money in trust. Her being by the will entitled to the use of it during her life, does not destroy the.trust character in which she, as executrix, held the money. -John Ely, her second husband, having, after his intermarriage with her, received a part of this money, was bound by the same trust. Scho, and Lef. 270. He must be held to have become possessed in right of his wife of such of the assets of the testator of whose will she was executrix as he received from her, and as husband of the executrix, he was rightfully possessed; the money was in the hands of both as trustees. And if this was not so, trusts are enforced, not only against him who is rightfully possessed of the trust property as trustee, but also against one who comes into possession of the property bound by the trust with notice of the trust. lb. 262. And on his death his assets are chargeable in equity for the money so received bjr him. Ib. 243, 265-6, 272.

This disposes of all the grounds of defence set up in the answers except one. It disposes of the statute of limitations, for it does not run against trusts; it disposes of the defence that the remedy is at law, for all trusts are cognizable here; it disposes of the defence set up in the supplemental answer, that this claim has been presented to the defendant, as surviving administrator of Ely, under an order of the Orphans’ Court limi iting the creditors of John Ely, deceased, and is pending undetermined in that court. By an order of that court, the creditors of John Ely, deceased, were limited to a certain time within which to present their claims, under oath, to the administrator of his estate, the defendant in this suit. This could not oust the jurisdiction of this court, nor does the fact that the complainants in this case, in pursuance of the said order and in compliance therewith, presented this claim. It was certainly prudent that they should do so. But this is the proper tribunal for the settling of the questions arising in this ease.

Another ground of defence is taken in the answer. The defendant says he is informed and believes that John Ely, in his lifetime, accounted with his wife, the executrix of Ferdinand Shibla, deceased, for the moneys he so received of her.

If an executrix or administratrix marries and the goods of her testator or intestate come into the actual possession of the husband and are wasted during the coverture, there can be no doubt the husband is liable, and on his death his assets are chargeable in equity. The executrix surviving would also be liable, if the assets of the husband proved insufficient. It is unnecessary to say, in this case, whether the assets of the husband, after his decease, would be liable if he, in his lifetime, replaced the moneys or goods in the hands of the wife, the executrix, in case they were afterwards wasted by her. It is sufficient for present purposes in this case, to say that, if he replaced the money in her hands, and it was not wasted, but remained in her hands, or has since her death come into the hands of her personal representative, it would be just and equitable towards the estate of her second husband, and the creditors of that estate, to charge, in the first place, the estate of the deceased executrix in the hands of her administrator. But how can I, in this cause, and between these parties, declare and decree that the moneys were repaid by John Ely to his wife? Her administrator is not before the court. The decree in this cause, that he had repaid, could be no foundation for a suit in which to charge her estate. The complainants, then, are here with the suit in such position as to parties, that it cannot be settled in favor of the estate of John Ely, even if the proof, as now made between the parties, were entirely satisfactory that Ely repaid. If the administrator of Deborah Ely had been made a party, he might have been able satisfactorily to resist the allegation of repayment, and thus show, at least, that Ely’s estate should be first resorted to.

On the other hand, if it was entirely clear that John Ely did not replace the moneys, I do not understand that the complainants here would be entitled to any preference out of his estate over other creditors; and if they were, his whole estate might be insufficient to pay this claim, in which event, as beforesaid, the assets of the wife’s estate would be answerable for the residue; and thus two suits would be necessary before an end of this matter could be reached.

No demurrer was filed to the bill, and therefore it should not be dismissed. I think the ease should stand over that the proper parties may be made defendants.

As to the question whether John Ely replaced these moneys, any result the court might come to on the evidence now before it would be little better than conjecture; and the case shows that more light might have been furnished to the court on the subject. By the course which I have suggested as proper to be taken, an opportunity will be afforded for additional proof on this subject.  