The consideration for the assignment of a life insurance policy was open to oral proof, and, in determining whether it was assigned as security for a debt, the court properly viewed the transaction in the light of the facts and circumstances under which it was made.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.* 11. LIMITATION OF ACTIONS (§ 151*)-NEW

PROMISE-GIVING OF NOTE.

Where a husband, indebted to his wife on loans aggregating about $11,000, gave her notes for $1,000 and $2,000 for the purpose of acknowledging the debt and renewing his promise to pay the several loans and to prevent their outlawing, the giving of the notes constituted an unequivocal acknowledgment of the entire debt, from which the law would imply a promise to pay it

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 614-618, 620; Dec. Dig. § 151.*]

12. EXECUTORS AND ADMINISTRATORS (§ 415*) -SETTLEMENT OF INSOLVENT ESTATES WAIVER OF SECURITY.

Under Gen. St. 1902, § 337, providing that if any creditor, having security for his claim against an insolvent estate upon any property of the estate, shall present his claim to the commissioners on the estate, they shall inquire into the cash value of the security, and, if they allow such claim, the executor, administrator, or trustee shall notify the creditor of the amount allowed and the value reported, and that, unless such creditor shall lodge with the court a certificate of his election to relinquish such security, he shall be entitled to a dividend from the estate only upon the excess of his claim above the value of the security, the presentation of a claim to the commissioners, without notice to them of the security held and its allowance by them, was not an election to receive the claim in that way rather than from the security, and did not defeat the creditor's right to the security and to a dividend upon the excess of the debt.

In January, 1900, Mrs. Wagner received by distribution from her father's estate onethird of a $1,500 debt owed by Mr. Wagner; the other two-thirds were inherited by her brothers, who gave the same to her. Mr. Wagner did not pay over this sum to Mrs. Wagner, but they agreed that Mr. Wagner should hold it as a loan from her, which he promised to repay, with interest.

About March 1, 1901, Mr. Wagner collected $1,200 due Mrs. Wagner for a tort injury to her person, and thereafter Mr. Wagner borrowed this sum of Mrs. Wagner upon his promise to repay the same, with interest. It did not appear that he ever paid over this sum so collected to his wife, but he always held and treated and acknowledged it to be her sole and separate estate.

Prior to December 1, 1904, there was delivered to Mrs. Wagner stock to the amount of $2,500 as a gift to her. This was sold and reinvested by her. These investments were in part sold, and the proceeds, $1,600, loaned by Mrs. Wagner to her husband upon his promise to repay the same, with interest. Mr. and Mrs. Wagner and the donor recognized that this gift became her sole and separate estate.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1863-1873; Dec. Dig. § 415.*]

Suit in the nature of interpleader by Estellah C. Wagner against the Mutual Life Insurance Company of New York and others, to determine the rights of the respective claimants to a sum of money paid into court by the defendant named as the amount due from it under a policy upon the life of plaintiff's deceased husband. Facts found and judgment rendered for plaintiff for $9,028, and the defendant People's Bank & Trust Company, administrator d. b. n. c. t. a. of the decedent, appeals. Affirmed.

S. Harrison Wagner and plaintiff, Estellah C. Wagner, intermarried in 1873, and did not thereafter avail themselves of the married woman's act of 1877 (Laws 1877, c. 114). Mr. Wagner died June 17, 1912, leaving a will in which Mrs. Wagner was named as executrix. She qualified as such July 11, 1912, and continued as executrix until July 1, 1913, when she resigned, and the People's Bank & Trust Company was appointed in her

Tousley.

Mrs. Wagner sold 11 shares of New Haven Water Company stock, inherited from her father, and from the proceeds loaned Mr. Wagner $1,000. Mrs. Wagner borrowed upon the stock inherited from her father $450, and loaned the same to Mr. Wagner.

Mr. Wagner always recognized these several loans as debts owed by him to his wife. Mr. Wagner always treated the moneys loaned him and Mrs. Wagner's stocks and bonds as her sole and separate estate. He never took or claimed the income from her investments. She collected the income and had entire control of them.

Shortly after the first loan, Mr. Wagner agreed with Mrs. Wagner to assign to her $25,000 of insurance upon his life to secure the payment of the loan made and those that might thereafter be made, with interest. And Mrs. Wagner made the loans subsequent to the first loan in reliance upon said agreement. In pursuance of said agreement Mr.

Wagner assigned to Mrs. Wagner, in January, 1912, the Equitable policy, the proceeds of which she collected and credited upon her claim, and on March 29, 1912, the Mutual Life policy, the proceeds of which form the subject of this action. These assignments were made in acknowledgment of these loans and in recognition of them as an existing claim and to carry into effect his said promises to secure the loans, with interest. Thereafter, in May and June, 1912, Mrs. Wagner paid premiums due on said policies, amounting to $658.41. The consideration for the assignments were these loans, with interest to 'December 9, 1913, aggregating $11,900. Mr. and Mrs. Wagner believed at this time Mr. Wagner was solvent, and did not make the assignments in fraud of his creditors nor in view of his insolvency.

On March 15, 1910, Mr. Wagner gave to Mrs. Wagner his demand note for $2,000, and on March 15, 1912, his demand note for $1,000. These notes were not given in discharge of the entire debt, but for the purpose of acknowledging the debt to her and of renewing his promise to pay the several loans and to prevent their outlawing. Mrs. Wagner, as executrix, represented said estate as insolvent under advice of counsel, but did not know at the time the estate was in fact insolvent. The estate consists of many securities of uncertain value, and it cannot be now found that the estate is in fact insolvent, although highly probable that Mr. Wagner was in fact insolvent on March 29, 1912, the date of the assignment of the Mutual Life policy.

Harrison Hewitt, of New Haven, for appellant. George M. Wallace and George E. Beers, both of New Haven, for appellee.

WHEELER, J. (after stating the facts as above). The reasons of appeal based upon the exceptions to the finding are not in due form. Practice Book 1908, p. 268, § 9. The record satisfies us that neither of the several exceptions (if made in accordance with our prescribed method) would have furnished valid ground of appeal.

The first and second reasons of appeal raise the point that all of these contracts of loan and the assignment were invalid, since Mr. and Mrs. Wagner were married prior to 1877.

The third reason of appeal is that Mr. Wagner's agreement to pay Mrs. Wagner interest on her loans was without consideration, since he was entitled to the income of her personal property.

The seventh reason of appeal is that Mr. Wagner had not abandoned his marital rights as to the several items of property of Mrs. Wagner loaned to him, so as to constitute them her sole and separate estate.

The eighth and ninth reasons of appeal are intended to be identical with the seventh, with special application to the loan of moneys received from Mrs. Wagner's father's estate

and to the loan of the moneys received by Mr. Wagner for the tort injury to Mrs. Wagner.

[1] The several loans and the conveyance assigning the policy of insurance were made in good faith, upon a valuable consideration, and must, in this equitable action, be enforced, since the terms of the contracts are just, reasonable, and certain. Boland v. O'Neil, 72 Conn. 217, 44 Atl. 15; Brown v. Clark, 80 Conn. 419, 68 Atl. 1001; Clarke v. Black, 78 Conn. 467, 62 Atl. 757; Corr's Appeal, 62 Conn. 403, 26 Atl. 473; Haussman v. Burnham, 59 Conn. 117, 22 Atl. 1065, 21 Am. St. Rep. 74.

[2, 3] Under the statute of 1849 (Laws 1849, c. 20), applicable to Mr. and Mrs. Wagner, Mr. Wagner was entitled to the possession of all of her personal property and the income therefrom not held as her sole and separate estate. Personal property held to her sole and separate estate was hers to do with as she pleased; she might loan it to her husband and make any contract in relation to it that a stranger could make with his property. Comstock's Appeal, 55 Conn. 214, 220, 10 Atl. 559; Imlay v. Huntington, 20 Conn. 146.

[4] From the finding it appears that Mrs. Wagner always retained the possession and control of, and collected the income from, her personal property, free from the domination and supervision of her husband, and that, as to the proceeds of the securities sold and loaned him and all other loans made, he agreed to repay the same, with in

terest. It is also found that Mr. Wagner always treated the moneys loaned him by Mrs. Wagner, and all of her securities, as her sole and separate estate. The finding makes this property her sole and separate estate. It also appears from the finding that shortly after the first loan Mr. Wagner agreed to assign to Mrs. Wagner $25,000 of life insurance to secure to her the payment of the loan made and others which might be made, with interest. And the loans subsequently made were in reliance upon such agreement, and the assignments of policies thereafter made were in fulfillment of this agreement. These acts completely divested the husband of all marital control of these items of her property, and, if they were not already the sole and separate property of the wife, made them such. Bidwell v. Beckwith, 86 Conn. 463, 469, 85 Atl. 682.

The finding specifically negatives reasons of appeal 3 and 5 that these loans and the assignment were in fraud of creditors and void as to them.

[5, 6] The sixth reason of appeal is that Mrs. Wagner was a mere guarantor of a loan by Mrs. Tousley to Mr. Wagner. If Mrs. Wagner was a mere guarantor, the sum so guaranteed could not be included in the consideration for the assignments, for the reason that the contract of guaranty would be unenforceable, since Mr. and Mrs. Wagner were married prior to April 20, 1877. Free

The finding negatives the claim that the transaction was one of guaranty. It recites that Mr. Wagner had in his possession $2,000 collected by him and belonging to Mrs. Tousley, and that Mrs. Tousley agreed to loan and did loan this sum to Mrs. Wagner, and she in turn loaned it to Mr. Wagner. The $2,000 was not in fact paid over to Mrs. Tousley, or by her paid over to Mrs. Wagner, or by Mrs. Wagner paid over to Mr. Wagner. All the parties intended this as a loan to Mrs. Wagner and an absolute cancellation of the debt of Mr. Wagner to Mrs. Tousley.

We think the finding is controlling, and it follows, as a necessary conclusion from the subordinate facts found, that Mrs. Wagner loaned Mr. Wagner the $2,000, and was not a mere guarantor of his debt. Nor do we think the fact that this sum remained in the physical possession of Mr. Wagner, as a matter of law, deprives the transaction of the effect intended by the parties.

[7-9] Reasons of appeal 10, and a part of 9, are that all claims accruing prior to July 1, 1906, are within the statute of limitations, and that the assignment of the policy of insurance did not constitute a new promise under General Statutes, § 707, taking the claims out of the statute. The statute was not pleaded, and could not have been, since the several items making up the consideration for the assignment of the policy was not disclosed until the trial. This claim was made in the argument in the trial below, and hence is available on appeal. Since Mrs. Wagner loaned these several sums for her sole and separate estate, the statute runs against her, as in the case of a transaction between strangers.

This is an equitable action of interpleader to determine the ownership of the proceeds of an insurance policy which the court finds was assigned as security for the payment of certain debts owed the plaintiff by the assured. At the time of the assignment, unless there had previously been a new promise to ay, these debts were barred. Though the debts were then barred, that defense could not be made subsequent to the assignment of the policy to secure their payment. The giving of security for a debt barred by the statute of limitations waives the benefit of the statute and operates as an unequivocal acknowledgment of the existence of the debt, from which the law implies a promise to pay the debt.

It is an acknowledgment of liability as significant as a part payment of the debt; both acts are alike in character, and equally unequivocal. Merrills v. Swift, 18 Conn. 257, 269, 46 Am. Dec. 315; Smith v. Ryan, 66 N. Y. 352, 354, 23 Am. Rep. 60; Insurance Co. v. Dunscomb, 108 Tenn. 724, 729, 69 S. W. 345, 58 L. R. A. 694, 91 Am. St. Rep. 769; Pollock v. Smith, 107 Ky. 509;1 Conway v. 154 S. W. 740.

[10] The trial court properly viewed the transaction of the assignment in the light of the facts and circumstances under which it was made. The consideration for the assignment was open to oral proof. It very plainly involved, as the court has found, a recognition of these several loans as present obligations, and constituted an agreement that the policy of insurance should stand as security for their payment, with interest in accordance with the original agreement, in reliance upon which all but the first of these loans had been made. The assignment was a promise to pay these loans by providing the means for so doing.

[11] The giving of the notes were also unequivocal acknowledgments of the entire debt from which the law would imply a promise to pay them.

[12] Reason of appeal 11 is that the presentation by Mrs. Wagner of her claim to the commissioners on the insolvent estate of Mr. Wagner, without notice to them of the security held by her as security for her claim and its allowance, was an election by her to receive her claim in that way rather than from the security of this policy assigned to her.

The procedure for a creditor of an insolvent estate, who has security for his claim, is that prescribed by General Statutes, § 337. It is his duty to present his claim to the commissioners and notify them of his security and their duty to allow or disallow the claim and find the value of the security and report the same to the court of probate, and if they allow such claim it becomes the duty of the executor, administrator, or trustee to notify the creditor of the claim allowed and the value of the security found. And, unless within 15 days after such notice he relinquishes such security, he shall be entitled only to a dividend upon the excess of his claim above the value of his security. The statute does not in terms prescribe the procedure in case he fails to notify the commissioners of his security and fails to make the election prescribed. It does not provide that the presentation of his claim is a waiver of his security.

In the absence of a contrary statutory procedure, one who holds security for his debt may pursue his remedy on the debt and on the security at the same time. He I will not be permitted in any case to obtain more than his debt. If a dividend be paid him, the payment is applied on the debt, and the security is available only for the balance of the debt. If the dividend satisfy the debt, the security is discharged. If the security be first applied to the debt, the dividend will be allowed only upon the part of the debt unsatisfied. Findlay v. Hosmer, 2 Conn. 350, 353; Peck v. Harrison, 23 Conn. 118, 122; Lawrence v. Security Co., 56 Conn.