67 Ala. 51 | Ala. | 1880
— The ante-nuptial deed of marriage settlement entered into, by and between appellant and appellee’s intestate, is made an exhibit to the bill. It, in express terms, makes Donovan trustee of his future wife’s estate, reserves to the latter an equitable separate estate, with unlimited ownership, and very large powers in and over the estate itself, and its income. There can be no question that if any of this trust estate went into the hands of the husband under this deed, and remained unaccounted for at Mis. Donovan’s death, it created a debt of a fiduciary character, which was not discharged by the proceedings in bankruptcy. — Rev. Stat. U. S. section 5117; Bump on Bankruptcy, 9th ed. 730; Blumenstiel’s Bankruptcy, 540-1.
The answer of the defendant admits the receipt of twelve hundred dollars of the equitable separate estate of the wife. Being her trustee, the prima facie intendment is that he received it in that capacity ; and the onus is on the defendant to overturn that intendment. His only reliance to obtain this end is his sworn answer. His admitted receipt of the
Tbe present bill is filed by the administrator of tbe cestui que trust, to compel tbe trustee to account. As we have shown above, the trustee received moneys of the trust estate, and there has been no settlement of his accounts. The bill contains equity, and the demurrer to it was rightly overruled. Crompton v. Vasser, 19 Ala. 259; Vincent v. Rogers, 30 Ala. 471; S. C. 33 Ala. 224; Eldrige v. Turner, 11 Ala. 1049; Chapman v. Chapman, 32 Ala. 106.
Affirmed.
