Davison, J.
The appellee was the plaintiff below, and the appellants, who are the heirs at law of one Robert Miller, were the defendants.
The complaint, the object of which is to quiet the title to a tract of land in Montgomery county, alleges that on the 17th of May, 1855, Isaac Castor and his wife, Amy Castor, formerly Amy Miller, by deed in fee, conveyed all the title of Amy Castor, and of her husband, Isaac Castor, [63]*63in and to the lands described, &c., to the plaintiff; and that Robert Miller, the former husband of the said Amy, while her husband, purchased, with her separate property, the land in question, but took a deed therefor in his own name, and held it in trust for her. It is averred that prior to his, Miller's, death, which occurred in October, 1838, he executed a will, wThereby he devised the land so purchased, to said Amy, his then wife, during her natural life, which will was, after his death, viz., on the 20th of November, 1838, admitted to probate; and that Amy afterwards intermarried with Isaac Castor, who, with his wife, took possession of the land, and conveyed it in fee simple to the plaintiff. It is further alleged, that Robert Miller died without issue, and that the defendants are his heirs, &c. The relief prayed is, that the title of the plaintiff derived from Castor and wife be quieted, &c.
Defendants answered—
1. By a general denial.
2. That the land in contest was not purchased with the separate property of Amy Miller.
3. That said land was not held in trust for her, &c., but was held by Robert Miller in fee simple; that he was so seized at his death; and that the same descended to the defendants as his heirs at law, &c.
There was a reply in denial of the answer, &c.
The issues were submitted to the Court, who found generally for the plaintiff, and specially as to the facts upon which its general finding was based. The defendants moved for a new trial; but their motion was overruled. Judgment for the plaintiff was accordingly rendered.
The facts, so far as they relate to questions presented for our consideration, are these: On the 10th of April, 1835, one William, Blackburn, the father of Amy Miller, then the wife of Robert Miller, purchased the land in dispute of one Peter Binford, and paid for it with money then in his, Blackburn's, hands as her guardian. The money thus used had been bequeathed to her by her grandfather. At the time of the purchase, Miller was present, when [64]*64Blackburn distinctly stated that he was purchasing the land, for Amy Miller, and with her money. Binford, the 'vendor, at the instance of Blackburn, executed the deed to Robert Miller, who with his wife, Amy Miller, took possession of the land, and continued in such possession until his death.
As stated in the complaint, Robert Miller devised the land to Amy Miller during her life. He died without issue, and the defendants are his heirs, &c. After this, Amy Miller intermarried with Isaac Castor, who, with his wife, conveyed the land in fee simple to the plaintiff. The Court, in its special finding, say that at the time the land was purchased and paid for, it was understood and agreed between William Blackburn, Robert Miller, and Amy Miller, that the same was for her use and benefit; that Robert Miller entered into possession in pursuance of said understanding and agreement, and held said land in trust for his wife, Amy Miller; and that the trust thus declared was by parol and not in writing, but it was made during the negotiation for the purchase, and constituted the terms upon which the money was invested.
There is a bill of exceptions, whereby it appears that when, during the trial, the plaintiff offered to prove by parol the understanding and agreement of Miller that the land was held by him in trust for his wife, the defendants objected, but their objection was overruled, and the parol evidence was admitted.
The statutory rule is, that “all declarations or creations of trust or confidence in any lands,” &c., “shall be manifested and proved by some writing signed by the party who, by law, may be enabled to declare such trust or confidence,” &c., “or else the same shall be utterly void and of none effect; provided, that when any conveyance shall be made of any lands,” &c., “by which a trust or eonfi-' dence may arise or result by implication or construclion of law,” &c., “such trust,” &c., “shall be of like force and effect as the same would have been if this act had never been passed.” R. S. 1831, pp. 269, 270. Thus, it will be seen that, in this case, there is no declared trust, because [65]*65the deed to Robert Miller is in terms, absolute, and upon its face imports a valuable consideration; hence, it was not competent for the plaintiff to set up by parol a declared trust, because such trust is inoperative unless it be in writing. But the statute to which we have referred settles the rule that a resulting or an implied trust need not be in writing. It may be proved by parol, even against the face of the deed or the answer of the trustee. And the inquiry at once arises—Is the present a case of resulting trust?
It has been decided that a trust results by operation of law, “when the estate is purchased in the name of one person, and the consideration comes from another; for instance, if A. furnishes money to B., with a view to the purchase of an estate, and B. makes the purchase with the money so furnished, and takes the deed in his own name, a trust results to A., because he furnished the money.” Lloyd v. Spillet, 2 Atk. 150.—4 Kent’s Comm. 306.—Botsford v. Burr, 2 Johns. Ch. 406.—Irwin v. Ivers, 7 Ind. R. 308.
Unless, then, the money invested in the land, at the time it was so invested, belonged to Amy Miller, as her separate property, it cannot be assumed that she furnished the consideration upon which the purchase was made. True, the money invested being a chose in action, could not become the absolute property of her husband until he reduced it to possession. Still the wife could, in point of law, have no control over it, and consequently no right to make any agreement respecting it. Her mere right to the money, in case she survived her husband, he having failed to reduce it to possession, would not authorize the conclusion that it was her separate property. Indeed, in a recent well considered case, it has been expressly decided that the interest of the husband in a legacy bequeathed to his wife, before he reduced it to possession, was fixed, certain,, and vested, and it was not her separate property. Westervelt v. Gregg, 2 Kern. 202, and cases there cited.
We are referred to Resor v. Resor, 9 Ind. R. 347. There, the wife having an estate in land, at the instance of her [66]*66husband sold it, and placed the proceeds of the sale in his hands for the purchase of a certain forty-acre tract of land, on the express condition that that tract when purchased should be conveyed to her and her son, it being her intention to reserve the fund for the benefit of her son.
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Davison, J.
The appellee was the plaintiff below, and the appellants, who are the heirs at law of one Robert Miller, were the defendants.
The complaint, the object of which is to quiet the title to a tract of land in Montgomery county, alleges that on the 17th of May, 1855, Isaac Castor and his wife, Amy Castor, formerly Amy Miller, by deed in fee, conveyed all the title of Amy Castor, and of her husband, Isaac Castor, [63]*63in and to the lands described, &c., to the plaintiff; and that Robert Miller, the former husband of the said Amy, while her husband, purchased, with her separate property, the land in question, but took a deed therefor in his own name, and held it in trust for her. It is averred that prior to his, Miller's, death, which occurred in October, 1838, he executed a will, wThereby he devised the land so purchased, to said Amy, his then wife, during her natural life, which will was, after his death, viz., on the 20th of November, 1838, admitted to probate; and that Amy afterwards intermarried with Isaac Castor, who, with his wife, took possession of the land, and conveyed it in fee simple to the plaintiff. It is further alleged, that Robert Miller died without issue, and that the defendants are his heirs, &c. The relief prayed is, that the title of the plaintiff derived from Castor and wife be quieted, &c.
Defendants answered—
1. By a general denial.
2. That the land in contest was not purchased with the separate property of Amy Miller.
3. That said land was not held in trust for her, &c., but was held by Robert Miller in fee simple; that he was so seized at his death; and that the same descended to the defendants as his heirs at law, &c.
There was a reply in denial of the answer, &c.
The issues were submitted to the Court, who found generally for the plaintiff, and specially as to the facts upon which its general finding was based. The defendants moved for a new trial; but their motion was overruled. Judgment for the plaintiff was accordingly rendered.
The facts, so far as they relate to questions presented for our consideration, are these: On the 10th of April, 1835, one William, Blackburn, the father of Amy Miller, then the wife of Robert Miller, purchased the land in dispute of one Peter Binford, and paid for it with money then in his, Blackburn's, hands as her guardian. The money thus used had been bequeathed to her by her grandfather. At the time of the purchase, Miller was present, when [64]*64Blackburn distinctly stated that he was purchasing the land, for Amy Miller, and with her money. Binford, the 'vendor, at the instance of Blackburn, executed the deed to Robert Miller, who with his wife, Amy Miller, took possession of the land, and continued in such possession until his death.
As stated in the complaint, Robert Miller devised the land to Amy Miller during her life. He died without issue, and the defendants are his heirs, &c. After this, Amy Miller intermarried with Isaac Castor, who, with his wife, conveyed the land in fee simple to the plaintiff. The Court, in its special finding, say that at the time the land was purchased and paid for, it was understood and agreed between William Blackburn, Robert Miller, and Amy Miller, that the same was for her use and benefit; that Robert Miller entered into possession in pursuance of said understanding and agreement, and held said land in trust for his wife, Amy Miller; and that the trust thus declared was by parol and not in writing, but it was made during the negotiation for the purchase, and constituted the terms upon which the money was invested.
There is a bill of exceptions, whereby it appears that when, during the trial, the plaintiff offered to prove by parol the understanding and agreement of Miller that the land was held by him in trust for his wife, the defendants objected, but their objection was overruled, and the parol evidence was admitted.
The statutory rule is, that “all declarations or creations of trust or confidence in any lands,” &c., “shall be manifested and proved by some writing signed by the party who, by law, may be enabled to declare such trust or confidence,” &c., “or else the same shall be utterly void and of none effect; provided, that when any conveyance shall be made of any lands,” &c., “by which a trust or eonfi-' dence may arise or result by implication or construclion of law,” &c., “such trust,” &c., “shall be of like force and effect as the same would have been if this act had never been passed.” R. S. 1831, pp. 269, 270. Thus, it will be seen that, in this case, there is no declared trust, because [65]*65the deed to Robert Miller is in terms, absolute, and upon its face imports a valuable consideration; hence, it was not competent for the plaintiff to set up by parol a declared trust, because such trust is inoperative unless it be in writing. But the statute to which we have referred settles the rule that a resulting or an implied trust need not be in writing. It may be proved by parol, even against the face of the deed or the answer of the trustee. And the inquiry at once arises—Is the present a case of resulting trust?
It has been decided that a trust results by operation of law, “when the estate is purchased in the name of one person, and the consideration comes from another; for instance, if A. furnishes money to B., with a view to the purchase of an estate, and B. makes the purchase with the money so furnished, and takes the deed in his own name, a trust results to A., because he furnished the money.” Lloyd v. Spillet, 2 Atk. 150.—4 Kent’s Comm. 306.—Botsford v. Burr, 2 Johns. Ch. 406.—Irwin v. Ivers, 7 Ind. R. 308.
Unless, then, the money invested in the land, at the time it was so invested, belonged to Amy Miller, as her separate property, it cannot be assumed that she furnished the consideration upon which the purchase was made. True, the money invested being a chose in action, could not become the absolute property of her husband until he reduced it to possession. Still the wife could, in point of law, have no control over it, and consequently no right to make any agreement respecting it. Her mere right to the money, in case she survived her husband, he having failed to reduce it to possession, would not authorize the conclusion that it was her separate property. Indeed, in a recent well considered case, it has been expressly decided that the interest of the husband in a legacy bequeathed to his wife, before he reduced it to possession, was fixed, certain,, and vested, and it was not her separate property. Westervelt v. Gregg, 2 Kern. 202, and cases there cited.
We are referred to Resor v. Resor, 9 Ind. R. 347. There, the wife having an estate in land, at the instance of her [66]*66husband sold it, and placed the proceeds of the sale in his hands for the purchase of a certain forty-acre tract of land, on the express condition that that tract when purchased should be conveyed to her and her son, it being her intention to reserve the fund for the benefit of her son. With the money so placed in his hands, he bought the land and took the title in his own name, which he held until his death. In view of these facts, it was held that the agreement between the husband and wife was valid in equity, and that there was a resulting trust created in the land in her favor.
The case thus cited is not, in our opinion, applicable to the one before us. The land sold belonged to the wife in her own right, and the agreement between her and her husband being valid, the proceeds of the sale were, of course, her separate property; while, in the case at bar, the money advanced in payment for the land purchased by the husband was not the separate property of the wife, and it seems to follow that there was no resulting trust. The parties may have intended by their agreement that the land conveyed to Miller should be by him held in trust for his wife; but that agreement not being in writing, was void by the statute of frauds, and the case stands as it would have stood had no such agreement been made. The result is, that the vesting of the money in real estate, the taking of the deed in his own name, and his subsequent disposition of the same estate by will, must be held to have operated as a reduction to the husband’s possession, of money to which he was entitled in right of his wife.