The mother of the plaintiffs was entitled, by the will of her first husband, to the income of his estate until she should again marry, and upon the happening of that event the whole estate vested in the plaintiffs, subject to the widow’s right of dower. After the mother’s marriage to Wildberger she permitted him to collect the rents belonging to the plaintiffs. Part of these ($1500) he deposited in bank, and the balance he used in his business. By an arrangement between the mother, acting as guardian of the plaintiffs, and Wildberger, he was to purchase the premises in question for the plaintiffs and pay towards the same the sum of $4700, of the moneys of the children in his hands and assume the payment of a mortgage of $10,000 then on the premises. After consultation with Cook, an attorney of this court, as to the propriety of the investment, the purchase was made, and title taken by Wildberger, for the benefit of the plaintiffs.
On these facts, the first question is, was there a resulting trust in favor of the plaintiffs ? It is quite clear that all the money that was paid for the land belonged to the children; the purchase, by agreement with the guardian, was to be for them. If the whole purchase money had been paid by them under these circumstances, it could not be seriously claimed that there would not be a trust resulting in their favor. But the purchase was subject to a mortgage. Whether Wildberger covenanted to pay it as part of the price, we do not know. If not, and I think we must presume that he did not, in the absence of evidence on the subject, then the whole price was paid out of the plaintiffs’ money, or charged on their land.
*533[New York General Term, November 2, 1868.It is insisted, however, that the money of the children was in the mother’s hands as guardian, and that she, and not Wildberger, is indebted to them for the rents received by the latter after the marriage. He received them as agent of his wife; he conceded he held the money for them. He was, therefore, their trustee, and the children might follow the fund into his hands, and into any property in which he might invest. He did not have this money of his wife; he collected it for her as her agent; and although the guardian may be still liable, Wildberger is liable also.
There is no doubt, upon the evidence, as to Wildberger’s insolvency. It does not lie with his creditors to say that the premises should be appropriated to pay their debts, because the mother is liable as guardian.
The equity of the children is the oldest, and superior to that of a mere judgment creditor, who takes his judgment as a means to obtain payment of a debt, and not by way of security for advances made upon the faith of the judgment as security.
I think the judgment should be affirmed, with costs.
Ingraham, Beckham and Mullin, Justices.]