70 Tenn. 661 | Tenn. | 1879
delivered the opinion of the Court.
Bill by a widow against the executors of the deceased husband to recover the amount of a promissory note executed by the husband directly to her during the coverture. The Chancellor granted the relief sought, and the defendants appealed.
The estate is solvent, and therefore, no question touching the rights of creditors is involved. Nor is there any serious difficulty in regard to the facts. At the time of the marriage of the testator and complainant, the complainant owned some little personal prop
The law of this State is, that a wife is entitled, by
The facts' bring this case within the rule. The declarations of the husbandj his acts and the circumstances show that it was not his intention to reduce the wife’s choses in action to possession, and the execution of the note constituted a declaration of trust in favor of the wife which equity will enforce, there being no question as to the rights of creditors.
Ordinarily, when a husband is charged as a trustee with the funds of the wife, he will not be held liable for the interest used for their common benefit. Lishey v. Lishey, 2 Tenn. Ch., 5; Hind’s Estate, 5 Wliart., 138. But this doctrine proceeds on the ground of an agreement on the part of the wife, express or fairly implied, that the interest might be so used, and that it was used. The evidence in this case fails to show any such agreement or use of the money, and, on the contrary, fairly imples, if it does not positively establish, that it was the intention of the husband to give the wife the benefit of the interest, as well as the principal.
Affirm the decree with costs.