Nov. Term, Ind. 317. Such a contract did not have the effect to con1859. tinue the consideration-the choses in action, the property of the wife.

MILLER

V.

BLACKBURN.

And as to Totten v. McManus, supra, the case does not show that it was not real estate that the wife changed into cash and reinvested.

The case of Taggard v. Talcot, cited in Totten v. McManus, is without point in the case at bar. In that case, it was not the property of the wife which the husband received, but the property of her father; and it was competent for him to give it to the husband upon such terms and conditions as he pleased. [2 Edw. Ch. 628.]

And it may here be remarked that, by ways of jointure and marriage settlement, property might be vested for the exclusive use of the wife, and be placed beyond the control of her husband, during marriage. Walk. Am. Law, 3d ed., 236. Such property the husband could not, against the consent of his wife, take possession of. And if he did, and used it, doubtless he might be held as a trustee of it, and his estate charged with it after his death.

So where property was given to her during coverture, coupled with the condition that it should be for her separate use, and under her sole control. See 2 Kent's Comm., 6th ed., p. 163. In all such cases, the husband, as such, has no right to take possession of the property.

And our statute seems now to have placed all the separate property of the wife on the same footing with that specially given or conveyed to her use at common law, except that she cannot dispose of it, under the statute, while she could when placed at her separate disposal at common law. See Hetrick v. Hetrick, 13 Ind. R. 44, and cases cited. It is true, that a husband may refuse to reduce to possession the property of his wife, and thus leave it hers. Gochenaur's Estate, 3 Am. Law Reg., p. 486. But suppose he should so refuse on one day, if the refusal was not upon a consideration, he might exert his right of reduction on a subsequent day. Did he not do that in this case? See 1 Shars. Blacks. Comm., p. 442, notes.

In the case now before us, then, there being no contract

Nov. Term, 1859.

MILLER

upon a consideration, on the part of the husband, in taking the deed for the real estate in his own name, and it being purchased with funds to which he had a legal right, and no trust being declared in writing, the property be- BLACKBURN. came the husband's absolutely.

In Ramsdell v. Craighill, 9 Ohio (Ham.) R. 198, it is held that if husband and wife sell her land, without any special agreement, and he receives the consideration and invests it in land in his own name, no trust arises for the wife. And a subsequent unexecuted promise to pay it to her, amounts to nothing.

HANNA, J.-I cannot concur in the conclusion arrived at by the majority of the Court in this case, and desire, as briefly as I can, to give my reasons.

The Circuit Court found "that the money invested in the land in controversy was invested and paid by William Blackburn, late guardian of Amy Castor, late Amy Miller, and was held by him for her use, and received by him, as her guardian, in part from the estate of her maternal grandfather, being a bequest to her," &c., "as one of the daughters of Amy Blackburn; and in part from the estate," &c., "of her uncle."

By reference to the evidence, it will be seen that the bequest to Amy Blackburn was made in 1817; that she was married to Robert Miller in 1831 or 1832; and that the money was so invested in 1835; upon which, together with other evidence, the Court based the second paragraph of the finding, namely, that "at the time said William Blackburn purchased said lands, and paid and invested said. funds in the same, the said investment was made with the agreement and understanding between the said Robert Miller and William Blackburn and Amy Miller, that the same was for her use and benefit; and that said deed to Robert Miller for the same was directed by the said William Blackburn to be executed by Peter Binford, the grantor, in pursuance of said agreement; and that the said Robert Miller entered into possession of said lands in pur

V.

Nov. Term, suance of said agreement and understanding, and held the 1859. same in trust for the said Amy Miller, his wife;" and, MILLER "Third. That the declared trust was by parol, and not BLACKBURN. in writing; but that it was made at the time and pending the negotiation for the purchase and investment, and constituted the terms upon which said investment was made."

V.

I take it to be an undeniable proposition that, so far as any question in the case at bar may be involved, the possession of the guardian of Amy Miller, of the said fund, was so far the possession of the said Amy, to her separate use, as to constitute the fund her separate property, and give her the right of possession, in fact, when she arrived at a proper age, if she was then unmarried. Barron v. Barron, 24 Verm. R. 390.—Pinney v. Fellows, 15 id. 525.— Porter v. The Bank of Rutland, 19 id. 410. If this is true, it may be conceded (although there are authorities the other way) that it follows that, at law, her husband would have had the right, after marriage, to have made this fund his own, by reducing it to possession, whatever his rights might have been in equity. As to this, see 2 Kent's Comm. p. 117. But the fund not being in her possession, in fact, the marriage, of itself, would not divest her of that separate estate, and vest it in him. This is manifest from the fact that, if he died before he reduced it to possession, it would not go to his representative, but remain her property. 5 Johns. Ch. 196.-33 Maine R. 43.-15 N. Hamp. R. 568.-8 Mass. R. 99.-17. id. 57.-14 B. Mon. 379.

It is also true, that if he had resorted to a Court of equity, to enable him to reduce the property to possession, the Court might, and most probably would, have compelled him to make a suitable provision for her. 14 S. & M. 59.-Story's Eq., § 1403.-Hill on Trustees, p. 408, and note.

She possessed, then, at the time of the marriage, the right to this separate personal property in the hands of her guardian. No trust as to that property was then interposed; and if any exists, it rests upon a post-nuptial agreement. As to the power of the wife to dispose of her

1859.

MILLER

V.

separate property by such agreement, Judge STORY says: Nov. Term, "There is a material distinction whether it be personal or whether it be real estate. In the former case, her power to dispose of it can affect her husband's rights only; and, BLACKBURN. therefore, his assent is conclusive upon him." 2 Story's Eq., § 1391, and note. That after marriage, agreements may be made, in regard to the wife's separate property, binding in equity upon the husband, is fully established by our own Court. Resor v. Resor, 9 Ind. R. 347.-Id. 100. -5 id. 407.-8 Blackf. 284. And is conceded in the language used in the opinion in this case. And, as a general rule, whenever a contract would be good at law, when made with trustees for the wife, that contract will be sustained in equity, when made with each other without the intervention of trustees. Story's Eq., §§ 1372, 1380.-24 Verm. 398.-2 Kent's Comm., pp. 147, 154.-1 P. W'ms, 125.-2 Verm. R. 659.-2 Johns. Ch. 537.-10 Ves. 146.9 Paige, 284.

In the case at bar, whatever might have been the right of Miller to sue at law and recover, and in that manner, or otherwise, reduce to possession this separate property of the wife, yet as he did not see proper to exercise that right, but, as the Court find, agreed to a disposition of it in derogation of his marital rights, he in effect waived any right which he might have to the property. I am not able to perceive why the case does not fall within the doctrine laid down in 2 Story's Eq., § 1380, namely―

"That whenever real or personal property is given, or devised, or settled upon a married woman, either before or after marriage, for her separate or exclusive use, without the intervention of trustees, the intention of the parties may be effectuated in equity, and the wife's interest protected against the marital rights and claims of her husband. In all such cases, her husband will be held a mere trustee for her; and though the agreement is made between him and her alone, the trust will attach upon him, and be enforced in the same manner, and under the same circumstances, that it would be, if he were a mere stranger. And it will make no difference, whether the separate es

Nov. Term, tate be derived from her husband himself, or from a mere

1859.

MILLER

stranger; for, as to such separate estate, when obtained in either way, her husband will be treated as a mere trustee, BLACKBURN. and prohibited from disposing of it to her prejudice."

V.

It is true, the section last quoted speaks of property given, &c., "for her separate use," and, in the case at bar, neither the finding of the Court nor the evidence shows that the bequest was thus limited; but, under the authority of STORY, first above quoted, § 1391, I do not see but that the husband is as completely controlled in an instance where, after marriage, he should agree with her that she might thus dispose of her personal property, namely, "for her separate use," as in an instance where the bequest itself contained such a limitation.

If I am correct in this conclusion, then, by the last section quoted from STORY, it is established that the husband himself may become the trustee, and will be held bound as such. See, also, Hill on Trustees, p. 75, where it is said that "there is no question but that a husband may hold property as a trustee for the separate use of his wife."

In the case at bar, the Court found that the husband held the property as the trustee of the wife. In other words, the Court, by its finding, negatives the idea that the husband had reduced the property of the wife to his possession, as husband.

Mr. HILL uses the following language: "What will constitute an actual reduction into possession, is not susceptible of exact definition, but depends on intention. There must be, in the first place, some distinct act, evincing a determination to take, as husband." Hill on Trustees, 415, note 1.

Thus, where a mother and daughter were entitled to certain slaves as co-distributees, but the slaves were never divided, and the husband of the daughter, residing on the mother's plantation, worked the slaves together, it was held that the marital rights of the husband had not attached. Durant v. Salley, 3 Strobh. Eq., p. 159.-Rogers v. Burnpass, 4 Ired. Eq., p. 385.

So where the husband receives from the executors of an