Ray, J.
This w as a proceeding commenced in the probate court under sections 7, 10 and 11, W. S., p. 85, to discover and recover alleged assets of the estate of deceased.' The case once before was in this court (Eans' Adm'r v. Eans, 79 Mo. 53), where it was held that the proceeding in question was available, not only in cases where the assets were concealed or embezzled, but also where they were openly held under claim of title; and that in the latter case the court must try the right of property between the administrator and the claimant. [593]*593The circuit court on appeal, having dismissed the proceeding for want of jurisdiction in the probate court, its judgment in that behalf, when here before, was reversed and the cause remanded for further proceedings in conformity to the opinion then rendered.
The facts of the case and the contention of the parties fully appear in 79 Mo. suprax to which reference is here had' and need not again be re-stated at large ; and on a re-trial, as shown by the record, the facts of the case and the contention of the parties are substantially the same as when here before. In the course of that opinion, the court use this language : “In the case at bar, the question between the administrator and the defendant was as to the ownership of the property in controversy. The plaintiff, on the one hand, claimed-that permitting the husband to sell said property,receive the money therefor and use the same in his, business during the period of time and in the manner indicated by the facts in evidence, was of itself," an appointment and disposition of the property by the wife in favor of the husband, within the meaning of the marriage contract itself. The defendant, on the other hand, denies this position and insists that where there is a marriage contract like this between husband and wife, and no trustee is appointed by the instrument itself, the law. makes the husband trustee for the wife and like any other trustee, the husband can reap no benefit to himself by the use of the property ; or acquire title thereto by investing the same or its proceeds in his own name without her assent thereto and therefor, and that in point of fact she made no such appointment or disposition, and the property and its proceeds are still rightfully hers. Whether the property has been thus appointed or disposed of, or still remains the separate property of the wife as contemplated by the marriage contract, is at most a question of intent and fact, to be found by the jury or the court, accordingly as the same is tried under [594]*594all the facts and circumstances in evidence, in connection with the marriage contract itself.”
The court then proceeds to decide in that opinion, that the probate court had jurisdiction to hear and determine the cause,in the summary manner pointed out; that it was error in the circuit court on appeal, to dismiss the complaint for want of jurisdiction; and that it should have proceeded to hear and decide the question under proper instructions or declarations of law, applicable to the case made by the facts as they shall appear in evidence at the trial.
It thus appears that when the case was here before, the court virtually made two rulings in the case: one, upon elaborate consideration, to the effect that the probate court had jurisdiction to hear and try the cause ; and the other, to the effect that it was a question of intent and fact to be found by the jury, under proper instructions upon all the evidence, whether the property had been thus appointed or disposed of by the wife in favor of the husband, as contended by the administrator ; or whether it.was-still the “separate property” of the wife as contemplated by the marriage contract and claimed by the defendant. For these reasons and for that purpose, the judgment was reversed and the cause remanded for further proceedings in conformity to that opinion.
Upon a re-trial, as shown by the record, the facts of the case and the contentions of the parties, with unimportant variations, were substantially the same as when the case was here before and the ruling of the court on the first point, as to the jurisdiction of the probate court, when the case was here before, must now be taken, and held, so far at least, as this case is concerned, as the law of the case.
As to the second point, as shown by the record', the contemplated re-trial has been had and the question of intent and fact has been found by the verdict of a jury in favor of the defendant, upon substantially the same [595]*595state of facts and the same contention of the parties as when the case was here before, with only such variations and unimportant exceptions to be hereafter noticed, under the following instructions, and it only remains to be determined, except as hereinafter stated in that behalf, whether those instructions properly and. fairly submitted that question to the jury. Those instructions are as follows :
For the plaintiff, the court gave the following :
“1. The court instructs the jury that if they believe, from the evidence in the case, the goods, chattels, money, papers, and evidence of debts mentioned in the evidence, and in controversy in this case, belonged to Wm. H. Eans at the time of his death, and are apart of his estate, and that defendant has them in her possession or under her control, they will find the issue for the plaintiff.”
The court of its own motion gave the following:
“2. The court instructs the jury that, although the marriage contract read in evidence, reserves to defendant a separate estate in the property described in the contract and in the increase and proceeds thereof, still that under the law, the defendant had full power and right to give said property, its increase, proceeds, or the money arising from its sale to Wm. H. Eans, and had the power and right to permit him' to appropriate the same as his own, and, therefore, if the jury believe, from the evidence in the case, that the property described in said marriage contract was sold by defendant and Wm. H. Eans jointly, or by the latter with defendant’s knowledge and acquiescence, and that said Wm. H. Eans did receive and appropriate the money or moneys arising from said sales with the knowledge and concurrence of defendant, and with the intent on her part that the same should become his property, then the defendant is not entitled to have or recover the same and the jury will so find.
[596]*596£ £ 3. The court instructs the jury that if they believe from the evidence in the case, that the property and money owned and held by the defendant in her own name at the time of her marriage with Eans, and charged to her sole and separate use by an ante-nuptial contract, was sold and disposed of with the assent of the defendant, and with her consent invested and re-invested in other property in the name of W. H. Eans, with intent on the part of the defendant that the same should become his property, and was so held and invested in his name at the time of his death, then they will find this issue for the plaintiff.
££4. If the jury believe from the evidence that the original estate mentioned in the marriage contract, with its increase, rents and profits, was lost in the emancipation of slaves, the burning of the mill referred to in)the evidence and in other business adventures, and that the property in controversy is a new estate, created alone by the exertion of Wm. H.
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Ray, J.
This w as a proceeding commenced in the probate court under sections 7, 10 and 11, W. S., p. 85, to discover and recover alleged assets of the estate of deceased.' The case once before was in this court (Eans' Adm'r v. Eans, 79 Mo. 53), where it was held that the proceeding in question was available, not only in cases where the assets were concealed or embezzled, but also where they were openly held under claim of title; and that in the latter case the court must try the right of property between the administrator and the claimant. [593]*593The circuit court on appeal, having dismissed the proceeding for want of jurisdiction in the probate court, its judgment in that behalf, when here before, was reversed and the cause remanded for further proceedings in conformity to the opinion then rendered.
The facts of the case and the contention of the parties fully appear in 79 Mo. suprax to which reference is here had' and need not again be re-stated at large ; and on a re-trial, as shown by the record, the facts of the case and the contention of the parties are substantially the same as when here before. In the course of that opinion, the court use this language : “In the case at bar, the question between the administrator and the defendant was as to the ownership of the property in controversy. The plaintiff, on the one hand, claimed-that permitting the husband to sell said property,receive the money therefor and use the same in his, business during the period of time and in the manner indicated by the facts in evidence, was of itself," an appointment and disposition of the property by the wife in favor of the husband, within the meaning of the marriage contract itself. The defendant, on the other hand, denies this position and insists that where there is a marriage contract like this between husband and wife, and no trustee is appointed by the instrument itself, the law. makes the husband trustee for the wife and like any other trustee, the husband can reap no benefit to himself by the use of the property ; or acquire title thereto by investing the same or its proceeds in his own name without her assent thereto and therefor, and that in point of fact she made no such appointment or disposition, and the property and its proceeds are still rightfully hers. Whether the property has been thus appointed or disposed of, or still remains the separate property of the wife as contemplated by the marriage contract, is at most a question of intent and fact, to be found by the jury or the court, accordingly as the same is tried under [594]*594all the facts and circumstances in evidence, in connection with the marriage contract itself.”
The court then proceeds to decide in that opinion, that the probate court had jurisdiction to hear and determine the cause,in the summary manner pointed out; that it was error in the circuit court on appeal, to dismiss the complaint for want of jurisdiction; and that it should have proceeded to hear and decide the question under proper instructions or declarations of law, applicable to the case made by the facts as they shall appear in evidence at the trial.
It thus appears that when the case was here before, the court virtually made two rulings in the case: one, upon elaborate consideration, to the effect that the probate court had jurisdiction to hear and try the cause ; and the other, to the effect that it was a question of intent and fact to be found by the jury, under proper instructions upon all the evidence, whether the property had been thus appointed or disposed of by the wife in favor of the husband, as contended by the administrator ; or whether it.was-still the “separate property” of the wife as contemplated by the marriage contract and claimed by the defendant. For these reasons and for that purpose, the judgment was reversed and the cause remanded for further proceedings in conformity to that opinion.
Upon a re-trial, as shown by the record, the facts of the case and the contentions of the parties, with unimportant variations, were substantially the same as when the case was here before and the ruling of the court on the first point, as to the jurisdiction of the probate court, when the case was here before, must now be taken, and held, so far at least, as this case is concerned, as the law of the case.
As to the second point, as shown by the record', the contemplated re-trial has been had and the question of intent and fact has been found by the verdict of a jury in favor of the defendant, upon substantially the same [595]*595state of facts and the same contention of the parties as when the case was here before, with only such variations and unimportant exceptions to be hereafter noticed, under the following instructions, and it only remains to be determined, except as hereinafter stated in that behalf, whether those instructions properly and. fairly submitted that question to the jury. Those instructions are as follows :
For the plaintiff, the court gave the following :
“1. The court instructs the jury that if they believe, from the evidence in the case, the goods, chattels, money, papers, and evidence of debts mentioned in the evidence, and in controversy in this case, belonged to Wm. H. Eans at the time of his death, and are apart of his estate, and that defendant has them in her possession or under her control, they will find the issue for the plaintiff.”
The court of its own motion gave the following:
“2. The court instructs the jury that, although the marriage contract read in evidence, reserves to defendant a separate estate in the property described in the contract and in the increase and proceeds thereof, still that under the law, the defendant had full power and right to give said property, its increase, proceeds, or the money arising from its sale to Wm. H. Eans, and had the power and right to permit him' to appropriate the same as his own, and, therefore, if the jury believe, from the evidence in the case, that the property described in said marriage contract was sold by defendant and Wm. H. Eans jointly, or by the latter with defendant’s knowledge and acquiescence, and that said Wm. H. Eans did receive and appropriate the money or moneys arising from said sales with the knowledge and concurrence of defendant, and with the intent on her part that the same should become his property, then the defendant is not entitled to have or recover the same and the jury will so find.
[596]*596£ £ 3. The court instructs the jury that if they believe from the evidence in the case, that the property and money owned and held by the defendant in her own name at the time of her marriage with Eans, and charged to her sole and separate use by an ante-nuptial contract, was sold and disposed of with the assent of the defendant, and with her consent invested and re-invested in other property in the name of W. H. Eans, with intent on the part of the defendant that the same should become his property, and was so held and invested in his name at the time of his death, then they will find this issue for the plaintiff.
££4. If the jury believe from the evidence that the original estate mentioned in the marriage contract, with its increase, rents and profits, was lost in the emancipation of slaves, the burning of the mill referred to in)the evidence and in other business adventures, and that the property in controversy is a new estate, created alone by the exertion of Wm. H. Eans, or by said Eans and wife after their marriage, then the jury will find the issues for the plaintiff.
££ 5. The court instructs the jury, that in determining the question-whether defendant permitted Wm. II. Eans to receive and appropriate the property and money in controversy, with the intent for him to have it as his own, the jury should take into consideration all the facts and circumstances in evidence, including the acts and conduct of said Eans and defendant in and about said property.
“ 6. The court instructs the jury that in order to find for the plaintiff, it is not necessary for them to believe or find defendant guilty of embezzlement, but simply that she is wrongfully withholding property belonging to the estate of Wm. H. Eans.”
To which the plaintiff at the time excepted. The court also gave the following instructions on the request of defendant, to whicli the plaintiff also excepted:
[597]*597“ 4. The jury are instructed that the legal effect of the ante-nuptial contract in evidence was to preclude the marital rights of William H. Eans from attaching to the property described in said contract, its increase, income, profits, rents, interest and proceeds, or any other property acquired with the proceeds of said property, or into which the same was converted, and the fact that she permitted said Eans to put such property in his own name, and to handle and use the same, did not make said Eans the owner thereof, unless at the time she did so, she intended to give said property to said Eans, and to make him the owner thereof, and the burden of proving such intention is upon the plaintiff.
“ 6. Before the jury can find for the plaintiff, they must be satisfied by a preponderance of the evidence that after the making of the marriage contract and contracting the marriage between Wm. EL Eans and the defendant, Wm. EL Eans took possession of the said property, claiming the same as his own, and denying the rights of the defendant under said contract, and that Mrs. Eans had actual knowledge of such claim and denial, and consented and agreed to such claim and denial on the part of Eans, and intended that Eans should be, thereafter, the sole owner of said property, and that she should release her rights under said marriage contract.
“ 8. Although Mrs. Eans may have permitted Wm. H. Eans to take possession of the property she had at the time of their marriage, and to use, sell and dispose of the same and to invest the proceeds thereof, and to do business with the same in his own name, yet, unless this was done with the understanding and intention, on the part of Mrs. Eans, that Wm. EL Eans should become the owner of said property, and that she should thereafter have no other or further rights under said marriage contract, the jury must find for the defendant.
“9. The jury are instructed that this is not a suit [598]*598to recover the value of services rendered by Eans in caring for the property of his wife, or in managing her interests, and they cannot, in this proceeding, find for the plaintiff for such services.
“9|. Although part of the property described in the marriage contract was destroyed or lost, yet if the property now sued for consist of increase, income, proceeds, profits, or interest of any pari of said original property into-which the same was converted by sale or otherwise, such destruction or loss alone will not authorize the plaintiff to recover.”
The plaintiff’s instructions asked and refused (except those in reference to the statute of limitations, to be noticed hereafter) were either supplied by or contradictory to those given in the case and need not be further noticed.
An inspection of the instructions thus given shows that they are explicitly directed, almost solely and exclusively, to the question of “intent and fact,” mentioned in the former opinion on that subject, and in our opinion they fairly and properly submitted that question to the jury. That manifestly is the controlling question in the case. The jury found the issue thus presented for the defendant. That there was ample evidence tending to support their verdict, there can be no question. In such cases our uniform rule is not to disturb the verdict so found.
If the rule contended for by plaintiff ’s counsel, both at the former and the latter- trial, and here insisted on in his brief, is to prevail in cases like the present, the marriage contract intended to exclude the marital rights of the husband and preserve the property with its increase and proceeds to the wife, from the control, possession or misappropriation by the husband, would become a snare and a fraud and operate to defeat the ■express object of its creation and execution. By law, in such cases, the husband is constituted trustee for the [599]*599wife, and as such usually and properly manages and controls her property. In such cases, his possession is her possession, and like any other trustee, he can reap no benefit to himself by the use of the property; or acquire title thereto by investing the same or its proceeds in his own name without the assent of the wife thereto and therefor. Why should he? Manifestly, such use and investment of property, of itself, and without more, is not, as claimed by plaintiff, an appointment or disposal of the property within the meaning of the marriage contract, unless it further appears that it was so done with the assent of the wife and for that purpose. Why should or how can the wife be divested of her property, without her intent so to part with it. In such cases the burden of proving that fact rests with the party alleging the same and seeking the benefit thereof. This is the fair import of the instructions and we think the question at issue was thereby fairly and properly submitted to the jury, and their decision is and ought to be conclusive upon us. These positions are, we think, abundantly sustained by the numerous authorities cited in brief of defendant’s counsel, among which may be cited the following: 2 Perry on Trusts, secs. 666, 664, 652; Gover v. Owings, 16 Md. 91, 99; 2 Bish. Mar. Wom., secs. 116, 132; Blanchard v. Blood, 2 Barb. 352; Strong v. Skinner, 4 Barb. 546; Baldwin v. Carter, 17 Conn. 201; 2 Kent, 162; Hook v. Dyer, 47 Mo. 214, 218, 219; Bank v. Lee, 13 Peters, 107-118; Crenshaw v. Anthony, Martin & Yerger, (4 Tenn.) 110; and Murray v. Fox, 11 Mo. 556, 563, 564, 565.
In the latter case of Murray v. Fox, 11 Mo. 556, (s. p.) at pp. 563-4-5, there is much in common with the case at bar, as to the facts and conduct of the wife and husband in reference to the trust property, and also as to the contentions of the parties to that suit and this, as well as in the rulings and reasoning of the court in that case, and in the one at bar ; (except that in that case, the [600]*600contest was between the creditor of the husband and the wife, while in this the controversy is virtually and practically between the heir of the husband and his widow.) The language of the case of the Bank v. Lee, 13 Peters, 107-118, and also that of the Tennessee court in the case of Crenshaw v. Anthony, Martin & Yerger, 110, approvingly quoted in the case of Murray v. Fox, supra, is also worthy of consideration as applicable, to a great extent, to the case at bar.
The concluding remark of the court, in the case of Murray v. Fox, supra, is striking, and to the effect that if the harsh rule contended for shall prevail, the wife must either abandon her property to save her husband, or abandon her husband to save her property ; and then adds that “such doctrine cannot receive the sanction of any judicial tribunal in this land.”
The noticeable differences between the record now before us and when here before, are as follows: ' In the former, it affirmatively appeared that the estate owed no debts^ remaining unpaid ; that the widow had paid the debts. In the present there is no express testimony on that point, but it is apparent, we think, from the entire record that that fact was taken for granted. The plaintiff is the administrator, the son-in-law of the intestate’s husband, and a witness in the cause, but nowhere in his testimony does he say, or pretend that there- were any unpaid debts or creditors; and the record nowhere or in any manner shows or intimates any such thing. No allowances against the estate anywhere appear, although the time for presenting the same was long pastfrom all which, it is, we think, fair to presume that no debts or creditors exist, and that this contract is a struggle solely between the heir of the husband and his widow and exclusively for the property of the wife mentioned in the marriage contract and its proceeds.
The former record, while it showed that the wife had [601]*601knowledge that the husband was conducting and managing all the business operations in his own name, yet it failed- to show any express assent or dissent on her part, to this mode of managing and conducting the same. Nor did it show any express claim by the husband that the property in question was his and not that of the wife. On these points the present record shows that the wife in her testimony used this language: “I never intended to give Mr. Eans my property. I expected to hold it as my own. He did not ask it; he did not claim it. * * * It was never my intention to give Eans the property. I did not know' how the deeds were made. Mr. Eans never claimed the property was his in my presence.” On the other hand, the plaintiff Gordon in his evidence uses this language: “Eans exercised full control over everything during the marriage and claimed all the property as his own. Eans never did business in any other name here than his own.” W. H. Short, at the close of all the evidence, being recalled by the plaintiff, testified: “The understanding with me was that all the property was W. H. Eans’ ; he called it his.” This is all the express evidence in the present record on that point. But neither the plaintiff Gordon, nor the witness, Short, said or pretended that this claim of the husband was brought home to the knowledge of the defendant. These differences we think do not in the slightest change the character of the controversy, then and now ; or thfe principles of law by which it should be decided. The case made,by both records, in all material aspects, is substantially the same.
The common-law rule, well established by the authorities already cited, is, as heretofore indicated, to the effect that, notwithstanding the marriage contract may by its terms exclude the husband’s marital rights to the wife’s separate estate, still the technical legal title thereto vests in the husband during coverture; but that in [602]*602equity he holds it not as husband, but as her trustee; and that upon his death, by operation of law, his marital and fiduciary relations, rights and powers over the same terminate and the property thus emancipated goes at once to the wife and not to his administrator or heir. 2 Bish. Married Women, sec. 116; 2 Barb. 352. The marital common law, as we have seen, would have vested the technical legal title to the promissory notes, certificates of bank deposits and bank stock, accounts and the like in the husband, whether taken in the name of the wife or husband; and the' act of the husband, in taking them in his own name, could do nothing more or change the rule of law in that behalf. In either case, as we have seen, the husband is but the trustee for the wife and under the law can take no benefit to himself or acquire any title to the trust estate, hostile to his wife, the beneficiary in the trust. Grumley v. Webb, 44 Mo. 444; Rea v. Copelin, 47 Mo. 76; Hook v. Dyer, 47 Mo. 214; 16 Mo. 302; 9 Mo. 772. This case is distinguishable in an important particular from that of Hook v. Dyer, 47 Mo. 214, 218, 219. In the latter case, Mrs. Dyer, while trustee for others, was also one of the beneficiaries in the trust estate. In the case at bar, the husband, so far as the trust property was concerned, which is really the object of the suit, was, in legal contemplation, a dry trustee, with no beneficial interest in the*property mentioned in the marriage contract and from which he was thereby expressly excluded from all beneficial interest.
Plaintiff’s refused instructions, designed to show title by limitation and for the refusal of which error is assigned, are as follows:
“5. If the jury believe from the evidence that said Wm. H. Eans was in the open and notorious possession of the property in controversy, claiming it as his own for more than five years next before his death, they will find the issue for the plaintiff.
[603]*603“6. If the jury believe from the evidence that said W. H. Eans was in the open and notorious possession of the property in controversy, claiming it as his own, for more than ten years next before his death, then they will find the issue for the plaintiff.”
These instructions are clearly inapplicable to the facts in evidence. They omit all reference to the fiduciary relations existing between the husband and wife, to the conceded fact that he was her trustee in reference to said property, and that his possession in its origin was friendly and in subordination to her title as the true owner; or that his alleged adverse claim and holding was in any manner clearly and distinctly brought home to her notice. For these reasons, if for no other, they were properly refused. The rule in all such cases is to the effect “that when a party is in possession of property in privity with the rightful owner, nothing short of an open and explicit disavowal and disclaim of a holding under that title and assertion of title in himself, brought home to the owner, will satisfy the law or lay a foundation for the operation of the statute of limitations.” Hamilton v. Boggess, 63 Mo. 233; Budd v. Collins, 69 Mo. 129, 139; Wilkerson v. Thompson, 82 Mo. 317; Tyler on Eject., p. 876, and other cases cited in brief of defendant’s counsel.
It is said the trial court erred also in refusing to permit plaintiff to file certain written interrogatories. The offer does not appear to have been in proper time, and even if it had, the error, if such it was, was not such as to warrant a reversal; especially as the plaintiff thereupon proceeded to examine and question the defendant on oath, touching all the matters and things contained in said interrogatories. It does not appear that any error was thereby committed materially affecting the merits of the action to the prejudice of plaintiff. Unless that appears, we are not authorized to reverse for that reason. . R. S. 1879, sec. 3775.
[604]*604It only remains to consider plaintiff’s eighth instruction, and in that connection, the title deeds to the realty and the husband’s watch. The eighth instruction is as follows:
“8. The court instructs the jury that on the pleading and evidence they should find for the plaintiff.”
Of the title deeds, it is sufficient to say that as they pertain to the realty, which under the facts of this case is in no way within the scope of this proceeding or affected thereby, it is not apparent how the ruling as to the title deeds materially affected the merits of the action to plaintiff’s prejudice. As to the husband’s watch, conceding it to be his, as the evidence shows, this objection, under the circumstances, has the appearance of an afterthought. In no fair or just sense can it be said to have been the subject-matter of the suit. It is not mentioned in the complaint, in any of the instructions asked or refused, nor in the motion for a new trial; and it is manifest from the entire record and contention of the parties that the real subject-matter of the suit was to recover the separate estate of the wife reserved to her by the ante-nuptial marriage contract, and its proceeds, but claimed by the plaintiff, at every stage of the proceedings, to have become the absolute property of the husband, by reason of the alleged conduct and course of dealing of the husband and wife in reference thereto. This is the burden of the whole proceeding. But, as a last resort, it is insisted in this court, for the first time, that the administrator was certainly entitled to judgment for delivery of the watch of the husband, and that the court therefore erred in refusing to direct a finding for the administrator as requested in instruction numbered eight. Instruction numbered eight, as asked, manifestly contemplated that the jury should find for plaintiff as to the whole case. If the plaintiff, at the time, really intended and sought [605]*605a recovery of the husband’s watch, by instruction eight, why did he not specifically call the court’s attention to the watch by name, and ask that, as to it at least, the plaintiff was entitled to a recovery ? If that was what he really meant and he had so informed the court, it doubtless would have so directed. It does not appear, however, that that question was ever passed upon by the trial court by said instruction eight, or otherwise, and if it had been, the court’s attention should have again been called to it by the motion for new trial. But this was not done.' There is manifestly no merit in the objection and no error in the record on that account.
Finding no error in the record, the judgment of the trial court is therefore affirmed,
in which Norton, C. J., and Black, J., concur. Sherwood, J., dissents. Brace, J., expressing his views separately.