Woodwakd, J.-
-Some preliminary examination is requisite, to ascertain the attitude of this cause in this court.. The bill' of exceptions which we number four, recites that-the plaintiff' proved' the matters therein set forth, by witnesses therein named, to the number of eight, and concludes-thus: “to all' which testimony, for the purpose of preserving the same of record, the defendant excepts, and prays that his bill of exceptions may be signed and sealed,” &c., and it is signed by the judge. There is no exception to the competency of the witnesses, nor to the admissibility of the testimony. This is a. new manner of proceedings There-has., [231]*231been no discussion upon tbe question, wbetber tbe court can properly notice this testimony, but tbe cause bas been argued with mucb reference to it, on botb sides. We are not prepared to say wbetber it should be received. Begu-larly, sucb a saving of testimony is: 1. Because improperly admitted; but bere there is no sucb objection. 2. To use on a motion for a new trial; but it is not embraced in, nor connected with, tbe motion for a new trial in this cause. If there is any other ground, it does not now occur to us. As both parties have, in this ease, referred to tbe testimony so saved, and especially tbe defendant, whose argument is, in many respects, based upon it, we will take notice of it, but without intending it as a precedent.
There are, in tbe papers, over six pages of instructions to tbe jury, asked by tbe one party or tbe other, regularly entitled as of this case, of tbe proper county, court, and term, and purporting to be signed by tbe judge of tbe proper district, showing, over bis signature, which were given, and which refused. But they are not contained in a bill of exceptions, or a motion for a new'trial, nor attached to one; neither is there a bill referring to them; nor is there, in tbe papers, anything serving to show that tbe giving, or refusing to give, any of them, was excepted to, although some of them are made a ground for a new trial. We have bad occasion, at this term, to give some consideration to tbe questions, what papers constitute a part of tbe record, under section 1977 of tbe Code, and what must be embraced in, or at least referred to, by a bill of exceptions. See Mays v. Deaver, ante, 216; Claggett v. Gray, ante, 19 ; and McCrary v. Crandall, ante, 117. Tbe question bas presented itself to tbe court in several cases, when it was not moved by tbe parties, and where, therefore, no opinion is written upon it. In all eases, we have held, that tbe instructions of tbe court must be embraced in a bill of exceptions, or at least attached to it, and made very certain as to their identity, for they are not made part of tbe record by tbe above section. They are sometimes oral, and sometimes in writing, and are required to be written only in two instances — that is, when [232]*232directed by the court, or requested by the party. They are put in writing, for certainty and convenience, on the trial, and to aid in taking a bill of exceptions; and in no case are they required to be filed or preserved. These instructions, therefore, must be stricken from the papers.
How does the case stand, then, and what have we to hear ? There was a special verdict rendered by the jury on several issues or questions, and a judgment is entered thereon. These, with the petition and answer, make a cause.
The petition avers, that Burmeister negotiated the purchase of the lot, j>aid part of the purchase money, went into possession and lived there, and in a short time died. The testimony shows farther, that he took a bond for the conveyance of the lot, when the balance of the purchase money should be paid. He died on or about the 5th of September, 1847. After his death, the widow paid the remainder of the money due on this contract ($1,900.00), and took a deed in her own name, dated 16th of September, 1847. A short time before his death, Burmeister placed $400 in the hands of A. H. Miller, with instructions to enter or purchase at the United States land office, the two certain quarter sections of land in controversy, which was done, and title taken in the name of Sargent, who afterwards made a conveyance to the widow, on the 11th day of October, 1847; the $1,900.00 paid by her on the purchase of the lot, was of the proper moneys of her said husband, the said Peter 0. Soon after [18th April, 1848], the widow, Maria E. Burmeister, intermarried with John H. La Eranz, the defendant, who thereupon took possession of the premises before described, as purchased with the moneys of the said Peter 0., and has ever since continued in the possession, and still is receiving the rents, issues and profits thereof. On the sixth [sixteenth] day of July, 1853, she made her declaration of trust in behalf of the said infants, the children of her former husband, in accordance with the facts hereinbefore set forth and charged On the 12th day of September, 1853, she conveyed the said lot and quarter sections of land, to the said infant children of her former husband. The petition concludes with a prayer [233]*233for tbe recovery of tbe said real estate, and also, thirty-five hundred dollars, tbe rents, issues and profits thereof for six years next before tbe filing of tbe said petition. Tbe above-mentioned deeds of conveyance, are made part of tbe case, and tbe declaration of trust recites, that at the date of tbe said conveyances to her, she was tbe widow of Peter C. Burmeister, deceased, and by tbe said Peter, tbe mother of three infant children, named in tbe petition (of whom tbe plaintiff is guardian), and that all tbe real estate described in tbe said deed of declaration, was wholly’ purchased with tbe money belonging to said infant children; that on tbe 18th day of April, 1848, she married John H. La Eranz ; that tbe sum of $1,900, paid by her for said lot, and tbe sum of $400, paid to Sargent, for the said land, was not, nor was any part thereof, tbe proper money of her tbe said Maria, but that tbe same and every part thereof was, and is, tbe proper money of tbe said infant children; that tbe deed from Hoge of tbe lot, and from Sargent of tbe lands, were in trust only for tbe said children, and that tbe same are only held by her as tbe trustee of all and each of said infant children; and she covenants to convey at tbe request of tbe guardian. Tbe defendant, La Eranz, did not join in mating tbe deed of declaration, nor in that to tbe children.
Tbe defendant demurred to tbe petition, and tbe demurrer being overruled, be answered. Tbe answer denies tbe right and title of the plaintiffs to tbe lot and lands, named in tbe petition, and to any part thereof; denies tbe claim of thirty-five hundred dollars for rents, issues and profits; and alleges that tbe said lot and tracts of land are properly and legally tbe property of defendant, in right of bis wife, who was, during tbe coverture of tbe defendant and bis said wife, and at tbe time of their intermarriage, seized of an estate of inheritance in fee simple, and that be has right to tbe full amount of tbe rents, issues and profits arising out of tbe same. Tbe replication avers that tbe said Maria E., wife of defendant, held tbe said legal estate in trust for said heirs of said Burmeister, and that, by said conveyance to said heirs, tbe said legal estate passed to them.
[234]*234The special issues or questions presented to tbe jury, are indicated by tbe finding. They find as follows : First: That tbe land and town lot mentioned in tbe plaintiff’s petition, were purchased with tbe money left by Peter 0. Burmeister, deceased." Second: That defendant’s wife (then widow Bur-meister) did take tbe title of tbe said real estate in her own name, as trustee for tbe heirs. Third: That Maria E. La Eranz has declared her trust, and conveyed tbe land to tbe plaintiffs. Fourth: That tbe defendant has not shown any title to said real estate in himself. Fifth: That tbe plaintiffs are entitled for tbe rents and profits of said farm, and house and lot, to three thousand two hundred and eighty-one dollars and twenty-five cents, including tbe moneys in tbe hands of tbe receiver, and to tbe immediate possession of said real estate.
These facts and allegations constitute the cause which we are to decide. And tbe facts may be thus briefly stated. Burmeister, in his lifetime, contracted for tbe lot four, paid part of tbe money, and took possession. After bis death, tbe widow paid tbe remainder of tbe money, and took a deed in her own name. She also paid four hundred dollars for tbe land, and took a deed in her own name. In both cases, tbe money she paid was money of her husband. She then married, and afterwards declared, by deed, that she held tbe property in trust for the plaintiff’s wards, and then conveyed it to them, her husband, La Eranz, not joining in tbe deeds.
Tbe defendant, her husband, now claims, that by virtue of tbe marriage, he has a life interest in tbe propertyj which neither her act, nor the law, can take away. He claims that at tbe time of tbe marriage, she was seized in fee of this realty, and upon tbe marriage, be became seized of a freehold estate, a vested estate, in the wife’s land.
Has the counsel for defendant overlooked one simple, but leading question, Was she seized in her own right ? He has not noticed this, but has seemed to assume, that tbe husband’s marital right overrides tins consideration-, and ousts every one else, if tbe wife only held the legal title. [235]*235But tbis question lies at the foundation. The husband cannot get, by the marriage, more estate, nor a better estate, than the wife had. If she had obtained it by fraud, would the marriage heal the difficulty? If she held in trust, does the marriage discharge the trust, or defeat it ? If the title was defective, does the marriage perfect it? But it is said, that it is the homestead. This does not make the title better. If your title to the property is not good, your fixing' the homestead there, will not mend it. You may fix your homestead on a good title, but fixing it there, will not make a good .title. Thus all the rights of La Eranz depend entirely upon what his wife had at the time of marriage.. Now, let us inquire, whether she did or did not hold as a trustee. The petition alleges, that the money she paid was of the proper moneys of her said husband, and the answer does* not deny it. The argument of defendant’s counsel assumes it plainly. The declaration of trust avers it. The testimony1 of the witnesses, establishes it by her own declarations, made at the time of the purchase; and authorities are not needed to sustain the proposition, that one who invest» another’s; money in land, and takes title to himself, holds the land in trust; that the land is Ms, to whom the money belonged.
But, it is objected, that the wife’s declaration cannot be> admitted to prove that the money belonged to Burmeister. We answer, first, the pleadings, admit it. In the next place,, the only parol declarations in evidence on this point, were made at the time of, and connected with, the original transaction, the paying the money on the taking the deeds, and all were made before the marriage. Therefore, we deem them admissible. Jackson, Cox & Co. v. Helding, 14 B. Munroe, 137; 1 Greenl. Ev. § 225; 1 Starkie on Ev. 301 to 304; 2 Russell, 63; Barker v. Rag, 3 Com. Eng. Ch. R. 33, and note and cases, there cited ; 3 Barn. & Adolph. 890; 1 Taunt. 141; 5 Ib. 222.
The admissibility of her declaration, presents itself in the deed declaring the trust. This was m^de after the marriage. Shall this be rejected, because she is now a wife? Shall the trust fail in consequence of her marriage ? This would [236]*236be an easy, and perhaps a pleasant, method to convert a trust into an absolute estate, and invest oneself with a valuable property. If this is a fraud on her husband, the property being purchased with her own, or his, funds, he is at full liberty to contest it, as he is now contesting this cause. But he does not pretend that the money was his; on the contrary, two or three days after his marriage, he says to the witness, Squires, “ I was not worth a picayune, and now I have got a plenty.” The deed is admissible, but it is the extrinsic evidence that gives it weight.
But her- trust character is established, without the deed declaring the trust. Besides the testimony before alluded to, Cook testifies that “ Burmeister being dead, some negotiations took plaee. The old deed and contract were canceled by agreement, and a new deed was made direct to her, she paying $1,900. She stated, as her reason, that she wanted to control and direct the property herself. There was no forfeiture of the contract by Burmeister, at the time of making the deed to Mrs. Burmeister.” This relates to the lot. The above testimony means, that a written contract with Burmeister was destroyed, and that she was substituted in his place. What more can we have, to show the trust? and we are referred to this testimony by the defendant. Mrs. Burmeister, then, being only a trustee, and holding the title for others, what are the rights of her husband ? They cannot be greater than hers. He cannot have a more absolute estate, than that on which his own hangs. His rights are exactly measured by hers. He cannot be regarded as a bona fide purchaser for a consideration, without notice. This is not like the English cases, in which the chancellor has set aside an ante-nuptial conveyance of the proposed wife, as a fraud on the husband. In those cases, she is supposed to be the real and actual owner of the estate. Whether with or without notice, his rights are in that only which his wife held as her own; in other words, his rights are in her property, and not in another’s. He says, that upon marriage he became seized of a freehold, was entitled to receive the issues and profits in the right of his wife, and [237]*237that sbe cannot convey without bis joining ber. He applies to^his case, tbe common law doctrine concerning tbe bus-band’s rights in tbe wife’s own lands. Here is bis error* It is true that tbe books say, that tbe husband, on tbe marriage with a femme trustee, becomes co-trustee. But all this doctrine is based upon two grounds, namely: that there may not be a failure of a trustee, and tbe wife’s inability to make a deed. This first ground is tbe real reason, it is presumed, why a trust estate descends to tbe heir, and why others take it in certain cases. Hill on Trustees, 232, 235, n. (1), 239, and 242; and part 2, chap. 2, 3, 4, 5. But neither tbe bus-band, nor any of tbe persons, so becoming trustees, take a beneficial interest. They take a naked title only, in fee, or otherwise, for the purposes of tbe trust. Only a bona fide purchaser, for a valuable (and adequate) consideration, without notice, takes tbe estate discharged of tbe trust. Hill on Trustees, ubi supra. It meant, then, that tbe husband trusts tbe cestuis que trust, and may take tbe rents and profits to his own use. This will not do. If be comes into tbe estate, be is but a trustee still. Tbe above principles are applied to one who is made a trustee expressly by deed or will, but if there is any difference between such a one, and one who becomes trustee by implication, they would apply more strongly to him who became a trustee by a perversion of funds, or by fraud. As to tbe allegation, that sbe could not convey without ber husband joining in tbe deed, this was true at common law; but, in tbe opinion of tbe pourt, this is changed by statute. As has been before remarked, by tbe Code, sbe may be executor or administrator, may make contracts in relation to ber own estate, and may make a deed like another person. Under these and similar provisions of of tbe statute, in relation to married women, it is our opinion, that sbe could execute tbe trust alone, and make tbe deed. Tbe husband taking no interest, but only a naked power, or title, tbe statute might take it away. It is not necessary, therefore, to determine whether tbe statute could take away a vested interest, such as is claimed.
Another ground of claim is advanced by tbe defendant* [238]*238He sajs, that Burmeister left a personal estate to some considerable amount, perhaps ten or twelve thousand dollars, of which about six thousand was money; that by law, his wife was entitled to a distributive share of one-third of this money (limiting the claim to the money at present); that she has invested only a little more than her share in this property, say $2,400; and that she is entitled to take, or rather that he is entitled to claim for her, her full share in this property, standing accountable for the excess only; or, at least, that she, and he through her, has right to her share of this property. It cannot be admitted for a moment, that any one entitled to a distributive share of an estate, can put his hand in and help himself. And especially cannot one, who is first bound to take care of it, and cause it to be administered in the manner the law directs. It is in evidence that this property has very much increased in value; and shall a tribunal called a court of justice, permit one, standing as she does, to say, “ I will take this for my share,’’ and leave the infant heirs of her husband to find their shares where they may ? And where are the other three thousand and six hundred dollars of the six thousand ? No administration has been taken on this estate. And still more, shall a court permit the husband to maintain such a claim, adverse to the action of the wife, when she is aiming to discharge her duty, and place the estate where it belongs ? Lewis v. Price, 3 Richardson’s Eq. 172 ; Johnson v. Spaight, 14 Ala. 27; 13 U. S. Dig. 383, §§ 23 and 26; Stower v. The Commonwealth, 4 Harris, 387; Barrow v. Barrow, 24 Vert. 375; 2 Richardson’s Eq. 114; 1 Gill & Johns. 270; Toller’s Law Ex. 38 & 9; 1 Williams on Ex. 136, 137, 138, 141, 333, 409 ; 7 Cruise, 64; 4 Dessausure, 459. The husband of a wife so intermeddling, is liable for her devastavit at common law, and liable for her torts. 26 Eng. L. and Eq. 397 and note; Hawk v. Hammer, 5 Binn. 43; Knox v. Pickett, 4 Dess. 92; Palmer v. Wakefield, 3 Dess. 227; Cox v. Hoffman, 4 Dev. & Batt. 180.
To get her share of the estate, the widow must go into the proper court. By investing her husband’s money in real [239]*239estate, and taking a title in ber own name, sbe becomes seized in trust for tbe estate, or in other words, for tbe beirs.
Then tbe defendant urges that sbe is entitled to dower in it, as of tbe real estate of ber, deceased bnsband. It does not appear that any claim for dower bas been preferred, nor that any. assignment of it bas been made. Until tbis is done, be can have nothing on that ground. And if tbis right existed, perhaps sbe bas relinquished it to tbe heir, which sbe could do, while sole. But, asks tbe defendant, can sbe relinquish tbis right after a second marriage, without tbe concurrence of ber husband in tbe conveyance ? In a cause which is legitimately extending itself so widely, we will not undertake to-decide more than is before us. We bold that sbe was seized in trust, and that sbe may execute that trust, without tbe intervention of ber husband. By tbe Code, §§ 1207,1277,1304,1453 and 1454, sbe may make a deed, or will, or may act as executor or administrator, independent of him (which is a trust), and be is' not liable for ber separate debts. Tbe reason why, at common law, sbe could not execute these trusts, was, that sbe could not make a deed, and ber entity was lost in that of ber husband, and be was responsible for ber. But tbis is changed by our laws. A woman is now a person. See Bishop on Marriage and Divorce, §§ 717, 720, and note (3); and Moore v. Mayer, 4 Selden, 114; upon tbe relations of tbe marriage contract, or status to tbe law of tbe domicil. On tbe subject of dower and its relinquishment to tbe heir, and tbe wife’s position in reference to it, before assignment, see Lawrence v. Miller, 1 Comstock, 245; Greenleaf’s Cruise, tit. Dower, chap. 3, § 1 and note; Good v. Atkins, 14 Mass. 378 ; Green v. Putnam, 1 Barbour, 500 ; Scott v. Howard, 3 Barbour, 319; 1 Dev. & Batt. 448 ; 2 Iredell’s Dig. 524 ; Williamson v. Cox, 2 Hayward, 4.
Under these views, it becomes unnecessary to discuss tbe questions, whether tbe common law estate by curtesy did, or does now, exist under our law? and whether tbe bus-band’s interest in bis -wife's real estate, becomes, on marriage, [240]*240a rested interest, wbicb neither sbe, nor tbe law, can take away? We rest upon tbe ground, that all bis interest depends entirely upon hers; and if sbe bad nothing, be has nothing.
Tbe defendant objects that tbe plaintiffs must recover on tbe strength of their own title, and not on tbe weakness of tbe defendant’s, and that they must have a legal title. Tbe first proposition is true, and we do not see but that they are ■recovering on tbe strength of their own title-; and without considering whether tbe second proposition is a correct one, it is sufficient to say, that they do stand on a legal title. Again: tbe defendant bolds, that bis right having become vested by tbe marriage, before be can be ejected or compelled to account for the rents and profits, it must be shown that be knew of a better outstanding title; and that tbe plaintiffs can recover only from tbe time tbe legal title vested in them, although tbe equitable title was in them long before. Tbe answer to this is, tbe same as to some of tbe preceding points. He, having no right in an estate held by bis wife in trust, there was no right or estate to vest in him, and none did vest. And it is a matter of every day’s ob-servatiod, that one is held accountable for tbe use of that wbicb be honestly believed be owned, but which it appears be did not own. As to tbe time for wbicb plaintiffs may claim tbe rents and profits, tbe verdict does not show for what time, the jury found; nor is there any instruction of tbe court before us, showing whether any, and what, position was taken by tbe court in relation thereto- — so that tbe court is not informed for what' time plaintiffs recovered. It is not an idle suggestion, to ask whether they might not recover for all tbe time tbe defendant was in possession within sis years ? Tbe plaintiffs’ interest in tbe estate was from tbe purchase of tbe widow, although they did not acquire legal title, till a later day. The rents and profits always belonged to them. If they belonged to them, they have a right of action for them. And then why not recover in this action, as well as in another? If they first acquired an interest, as well as a title, when the deed was made; tbe case would be different. But we do not adjudicate this. Tbe [241]*241case of Harker v. Witaker, 5 Watts, 474, is one, where the plaintiffs seeking to recover mesne profits, were creditors only, and sought to recover for a time prior to their title under the levy. Pulteney v. Warren, 6 Ves. 73, does not aid us much, as it stands almost altogether upon its own circumstances. The correct abstract of that part of the case, bearing on this question, is, “account of rents and profits confined to the filing of the bill, filed upon the ground of equitable relief, against a mere adverse possession without'fraud, &cT Finally, the defendant maintains, that the trust contended for, resulting from the operation of law, no declaration of it could be made under our statute; that it is a mere creature of equity, there to be ascertained and enforced; and that the matter of this action is not cognizable in a court of law, but that the plaintiffs should seek relief in equity. Section 1205 of the Code, certainly, does not forbid the declaration of a trust arising by operation of law. And the position, that as a trust is a creature of equity, therefore there is no place for these plaintiffs in a court of law, has no application here. If the trust remained a trust still, they would undoubtedly have to resort to equity to procure its enforcement. But if the trustee is willing to confess and execute his trust, what need is there of going into a court, either of equity or of law ? And the trustee having executed it, no reason is seen why plaintiffs should not recover at law.
Having taken this view of the questions raised, and the law relating to them, this disposes of many of the errors assigned. All the material points raised by the demurrer, were made on the hearing also.
The second error assigned is, that the court overruled the defendant’s challenge of the array of the petit jurors. The provisions of chapter 96 of the Code, are to be taken as directory. If the civil officers fail to perform their duty, they may be punished. But it is not intended by the statute, that the courts of justice should fail, because some county or township officer neglects his duty, in apportioning or drawing the general list of jurors for the year. The People v. Supervisors of Chenango, 4 Selden, 317. It was designed by sections [242]*2421647 and 1777 of the Code, tbat a court should not be without the power of obtaining a jury, and should not fail for the Avant of one. If there was an error in rejecting the first panel of jurors, the defendant does not, and probably cannot, complain of it. See Suttle v. Batie, ante, 141. The third and fourth assignment of errors relate to the instructions, said to hare been given or refused. These instructions are not before us. The fifth, complains that mense profits were recovered for a period prior to the .accruing of the legal title. This does not appear, as is before shown. The sixth and seventh, relate to the overruling the motion for a new trial and in arrest of judgment. These 'raise the same questions Avhich are herein already decided,
Judgment affirmed.