¶1The principal question discussed in this case is, whether an estate of a deceased person actually solvent, but which has been represented insolvent, and is being settled as an insolvent estate, is insolvent within the meaning of the statute which provides that suits brought against insolvent estates shall abate. But there is a question underlying that, and that is, whether this is an action brought against the estate within the meaning of the statute, or is an action against an administrator to recover property which is in his possession, and which he claims to hold in his official capacity, and which the plaintiff claims belongs to the estate which he represents. In other words, is it an action against the estate, or against the administrator ?
¶2We think it is an action against the administrator.
¶3It appears that Leach, the plaintiff’s intestate, owned certain money deposited in a savings bank at Middletown, of which, under an arrangement between them, his wife was to have the possession and use during her life. He died before she did. Upon her death the defendant, administrator of her estate with the will annexed, took possession of the fund and now holds it in his official capacity.
¶4It is obvious that this arrangement created no debt on the •part of Mrs.. Leach. She did not obligate herself to pay money during her life. She was entitled to retain the possession of the money until the last moment .of her life. Of course no one could demand it of her and no one was entitled to receive it from her. Nor is it one of those excep*21tional cases in which she entered into an obligation payable at or after her death. She made no attempt to bind her estate. By her agreement she was only entitled to the income of the fund during her life. The real title to it, or to the remainder, was in her husband during her life. Her death terminated the life estate, and, had he been then living, the fund would have been his, freed from that burden. When he died his interest in the fund was a part of his estate, and vested in his administrator. When she died it was the duty of his administrator to administer it for the benefit of his heirs.
¶5If it be objected that money has no ear-marks, and that when she took possession of it she had the power of disposing of it, so that now it becomes in effect a money demand against her estate, we answer, that if she did take the money and dispose of it in a manner not contemplated by the arrangement then it was clearly a breach of the agreement, in effect a breach of trust, and that will not be presumed. But even then that part of it which she did not thus dispose of, if any, would belong to his estate, and her estate would be liable as for a debt only for that part which she wrongfully disposed of.
¶6Conceding that she actually received money instead of choses in action, we think the money was in the nature of a trust fund, and that her relation to it was that of a trustee. True, she was entitled to the interest, but at her death the fund itself was to go to her husband, to whom it belonged, or to his estate. So far as the fund can be traced it should be treated as trust property and a part of his estate, provided it can be done without prejudice to the rights of third parties. If she received savings bank books or other evidences of debt, and kept the property substantially as it was, or re-invested it so that it may be identified, we see no reason why the plaintiff is not entitled to the relief sought provided he proves his title to the property.
¶7The judgment is reversed and a new trial ordered.
¶8In this opinion the other judges concurred.