Hone agt. De Peyster. loaned the moneys to divers persons, taking their notes therefor. By her will she bequeathed these notes to the defendant. The defendant contended that the common law gave the husband no property in a chose in action of his wife, not collected or appropriated to his use in her life-time, and that after her death he could claim only as her administrator, and hence took subject to her right to dispose of the same by will. But the court held that "all the personal estate of a wife vests absolutely in her husband at the moment of marriage, and all she acquires during coverture immediately becomes his. This is just as true in respect to her choses in action as of any other species of her personal estate. With regard to the choses in action, she has only a contingent interest in those in which her husband has failed to reduce to possession, or assigned or disposed of in his life-time." At her death, he does not take her choses in action, as next of kin, or under any statute of distribution, "but the property is already vested in him." The court accordingly held that the right of a husband to his wife's rights in action, even though not reduced to his possession or appropriated to his own use during her life-time, was such a vested right that the legislature could not take it away. See also, on this general subject as to the common law rights of a husband in his wife's choses in action by the way of survivorship, the recent case of Olmstead agt. Keyes (85 N. Y., 593). It is very clear, therefore, that this case must be decided exactly as if the "married woman's act" had not been passed, except so far as Mrs. De Peyster may be shown to have possessed an equitable estate, which by the act of 1849 became a legal estate in some or all of the property in question. Unless, however, this be the case, and unless the acts and declarations of Mr. De Peyster had recognized this property, or some portion of it, as set apart for the "sole and separate use" of his wife, so that he had become her trustee, the acts of 1848 and 1849 had no effect whatever upon his marital rights, and his title and that of his representatives to her chattels and choses in action were and are unaffected thereby. Her chattels Hone agt. De Peyster. acquired prior to the act of 1848 vested in him absolutely when acquired; her choses in action vested in him absolutely upon her death, even if not previously reduced to possession. I proceed to inquire whether there is any evidence of any trust relation as to any of the property acquired prior to 1848. The first transaction in the order in which the several matters are set forth in the complaint is the Peru Iron Company matter. It is averred that about February 4, 1846, Frederick De Peyster received from the Peru Iron Company, for and on account of his wife, the sum of five thousand four hundred and thirty-six dollars and forty-six cents ($5,436.46), being her share in certain moneys due from said company to the estate of her late husband, John Hone, Jr. Mr. Frederick De Peyster's check-book, covering the year 1846, was produced under a subpœna duces tecum, and an entry on the stub of the check-book, under date of February 5th, upon the deposit side of the account, was put in evidence by the plaintiff. This entry reads: Mrs. F. De Peyster, Mrs. F. G. Foster, Mr. John Hone: Proceeds from sale of their portion of P. L Co. bond and stock, as per mem. on file, and including checks 2,474 and 2,475 Note: Mrs. De P... Mrs. F...... $16,733 33 $5,511 11 5,511 11 5,511 11 $16,533 33 50 00 150 00 $16,733 33 This entry does not seem to me to indicate any declaration Hone agt. De Peyster. of trust. On the contrary, it would seem to be an appropriation to his own use of the moneys, and a reducing of them to his own possession. It was a deposit of them to his own account in the bank, where they became mingled with his own funds and entirely under his own control. The moneys belonging to the shares of Mr. Hone and Mrs. Foster would seem, by cross-references on the stubs of the check-book, to have been subsequently paid over to them; but, so far as appears, the share of Mrs. De Peyster was never paid over to her or to any one for her use, but remained in Mr. De Peyster's bank account, unless drawn out for his own use. I am constrained to conclude, as to these moneys, that there was no declaration of trust, but, on the contrary, an unequivocal reduction of them to his own possession by the husband. The name of Mrs. De Peyster, entered. on the stub of the check-book, in my judgment merely indicates the source whence the money was derived. It certainly is not sufficient to establish a trust, especially when the deposit itself was directly antagonistic to the theory of a trust, being an appropriation of the funds to the depositor's own use, and a mingling of them with his own money. It must not be forgotten that in this appropriation of these funds of his wife, the husband was but exercising a clear and unquestionable legal right. The funds were his by virtue of the marital relation unless he chose to waive his title or neglected to reduce them to possession. No such presumptions or intendments will be made against him as would be made against a wrong-doer or any one who owed some duty to the person claiming to be cestui que trust. The next transaction set forth in the complaint is, that on or about May 1, 1848, Frederic De Peyster received for and on account of his wife the sum of $6,000, derived from the sale of No. 194 Hudson street in the city of New York, which premises had previously been bought in about January 31, 1840, by said Frederic De Peyster for and on account of said Maria De Peyster under a foreclosure sale of a mortgage for $5,000, given by John McVicker to said Maria A De Peyster prior to her marriage to Mr. De Peyster. Hone agt. De Peyster. The check-book of Mr. De Peyster for the period between April 30, 1846, and May 1, 1849, was not found or produced on the trial, and no evidence was offered by the plaintiff, except the recital in the deed from Mr. and Mrs. De Peyster, to show the receipt of this money by Mr. De Peyster or its disposition by him, and it is, therefore, unnecessary to further consider this transaction. There is no evidence of any trust as to this sum of money. The next matter set forth in the complaint is to the effect that, about April 22, 1844, the executors of John Hone, plaintiff's grandfather, paid to said Frederic De Peyster, for and on account of his said wife, the sum of $6,000, the amount of a legacy to Maria Hone, deceased, a daughter of said Maria A. De Peyster by her first husband. It appears from the testimony that plaintiff's sister Maria died in 1833, at the age of ten years. Their grandfather, John Hone, had died in 1832, leaving a will and codicil, by which he gave to each of his grandchildren living at his death the sum of $6,000, the same to be paid to each of them upon their respectively attaining the age of twenty-one years, or marrying. Maria Hone would have attained the age of twenty-one years, had she lived, in December, 1843. In April, 1844, the amount of her legacy was paid by the executor of the grandfather, and Mr. Frederic De Peyster received the amount with interest on or about April 22, 1844. It seems to have been supposed by all the parties that Mrs. Frederic De Peyster was entitled to the whole of this legacy as next of kin to her deceased daughter, although, by the statute of distribution, she was entitled only to one-third. Mr. Frederick De Peyster's check-book shows an entry under date of April 20, 1844, on the deposit side, as follows: Mrs. De Peyster, legacy from Hone estate.. ... $6,000 00 Interest from November 22 last, as per receipt in the Hone receipt book Total 172 66 $6,172 66 Hone agt. De Peyster. This entry, for the reasons already stated in connection with the Peru Iron Company matter, I do not regard as evidencing a trust but rather the contrary, an appropriation of the fund to his own use. The next matter in the complaint calling for examination, is as to the Bowery Fire Insurance Company stock. At the time of her marriage to Mr. De Peyster, Mrs. De Peyster was the owner of six shares of the capital stock of the Bowery Fire Insurance Company. The certificate was in her name, and so remained up to the time of her death, and stands in her name now. But this fact did not indicate any intention on the part of her husband to treat it as her "sole and separate estate," in the equity sense of that phrase. It was, at most, merely refraining from exercising his marital right to reduce the stock to his own possession. Upon her death, the stock passed absolutely to him by right of survivorship. It is not shown that he did or said anything as to this stock, which indicated any intention to waive his marital rights. On the contrary, he always collected the dividends from the date of his marriage to the date of his wife's death, thereby asserting and exercising pro tanto his right to reduce the same to his possession. I do not find any evidence which would justify me in concluding that this stock was set apart as a trust, or became the “sole and separate estate" of Mrs. De Peyster, so as to cut off his common law rights as husband. The only other allegations of the complaint remaining to be considered are to the effect that the defendant holds certain bonds, household furniture and other personal property, chattels and effects belonging to said Maria A. De Peyster's estate, and received by defendant as executor of said Frederic De Peyster. The only evidence offered in support of these allegations relates to two silver water pitchers and trays, silver kettle and a Dresden china centre-piece. As to the silver pitchers and trays there is no testimony except that of Mrs. Emott; plaintiff's daughter, who testified |