Page:Federal Reporter, 1st Series, Volume 2.djvu/322

 IM EE COESB. 815 �the effeet, "that he was to return her, on demand, either the same real estate or the value of it, and the amount received from the executors of her father'a estate, and grandfather's estate, and to give her security, as she should demand it at any time." �They also both testified that she had frequently made demand for payment, or for security, and that she had asked for a mortgage on the real estate. He had refused on the ground that it would injure his credit. �It is claimed on the part of the contesting creditors thai there is not sufficient proof of the existence of the lost paper. But it ig evident that if there was no sueh paper drawn up, or if its contents were substantially different from what ia testified to by these two witnesses the contestants could have called Judge Suffern to contradict them. He drew the re- leases from these parties to the executors, and took their acknowledgments. The fact that such an agreement was exeouted, even if its terms are a little uncertain, repels en- tirely the theory that the transfer of ail this property to the husband was a gift from the wife. The question is, therefore, upon what terms and under what obligation in respect to it did he hold what he so received. It is argued by the learned counsel for the contesting creditors that he took it as trustee for the wife; that he invested the personal property in the real estate, and by the eonveyance through Hoar, in 1875, has transferred the whole, both the real estate and the personal property, in the form of improvements on the reality, to her, and so that he has discharged his trust and performed his agreement with her, made in 1868, if there was any such agreement, and it was binding on him. �It is doubtless true that by accepting from the executors this property, with fuU knowledge of the trust under which they held it, the bankrupt became chargeable upon the suit of his wife, or her legal representatives, with those trusts. At any time before she came of age he would have been -harged as her trustee of this property, in any suit brought for that purpose, in the same way in which the executors would bave been. By no agreement between them and him, ����