I think that, in equity, the plaintiff is not entitled to all the relief she demands, but am inclined to think that a denial of all relief, and a judgment so declaring it, might operate as a bar to any future claim on her part, and that, for this reason, the legal conclusion of the referee is based on error.
*371Whatever may be the character of the two deeds in question, to wit, the deed of Powell and wife to the plaintiff, and the deed of the plaintiff to the defendant, the considerations specified therein are subject to be inquired into, and this may be done by paroi evidence.
The referee was, therefore, right in admitting such evidence on the trial. (Swinburne v. Swinburne, 28 N. Y., 568, 573; Chester v. Bank of Kingston, 16 N. Y., 336; Boyd v. McLean, 1 John. Ch., 562; Reed v. Fitch, 11 Barb., 399; Loundsbury v. Purdy, 16 Barb., 376.)
To determine the object and character of the conveyances, the whole extrinsic circumstances may be given in evidence, when one of the parties in interest is dead or cannot testify. Among the leading features of this case, is the fact that Isaac Collins, now deceased, had furnished a large portion of the purchase-money of the property in question, but had the title thereto taken in the name of his wife, now the plaintiff; that the property was heavily incumbered, and, besides, he had incurred large liabilities in improving the same property. Notwithstanding the title was in the name of his wife, he had equities in the estate growing out of his improvements thereon, which his creditors could have reached. His personal estate was also largely incumbered. Desiring to save the property, as well as to save costs and expenses in winding up his estate, upon his dying bed he requested that his wife convey this estate to his brother’, the defendant, to take charge of and do the best he could with it for his wife and children. The plaintiff, his widow, in pursuance of this request, and it must be presumed to that end, did so convey. I do not think the court are called upon to declare by what technical name to characterize this conveyance; whether an absolute conveyance in trust, or in the nature of a mortgage. The object and intent of the parties is clear, and that intent, in equity, should be carried out. The intestate had creditors whom he wished should be paid. To pay them, among other things, he requested the conveyance to be made'; to this intent, it must be presumed, among other things, it was made, and for this *372purpose the conveyance was received by the defendant. To the extent that the defendant has carried out this design he has a right to be protected; he has a right to be subrogated to the place of those creditors whose debts he has paid. This is a principle of equity too clear to be controverted. The defendant only claims to hold the property to carry out the expressed will, or wishes, more properly, of the intestate; and the conveyance by the plaintiff to him, it must be presumed, was made to carry out that will or wish of the intestate ; and the plaintiff is estopped, upon the facts found, from denying that she conveyed it for that purpose, or those purposes. And to the extent that the defendant has paid and discharged the claims for repairs and improvements made by the intestate out of the personal property of the intestate, he is also subrogated to the equitable rights that the intestate had in the property that could have been reached by creditors. This is an equally clear principle of equity.
There is, really, but one other question that needs discussion, and this is surrounded by some complications, which do not appear in the report of the referee. The plaintiff claims, first, an absolute reconveyance of the estate. This she is not entitled to ; it is unjust to claim it. Second. She claims a reconveyance of the whole estate, subject to the liens and incumbrances paid by the defendant. Nor is she entitled to this. Her husband had an interest in the estate conveyed; this interest he desired should be conveyed for the benefit of the plaintiff and his children by a former wife. It was so conveyed by her. In this conveyance, in equity, she recognized her husband’s interest, and conveyed it for the benefit of herself and her husband’s children ; equitably as much for them as for herself. She can neither repudiate this conveyance nor deny its object, and she cannot demand a reconveyance to herself of that which was conveyed for the benefit of these children. That the indefiniteness of the respective claims of the plaintiff and children will create some complications, is probable. This will require a trial, and it must be settled upon proper principles of equity. It is in proof that *373some of. her own separate estate is involved. This can be ascertained upon, a trial, and allowed her. Perhaps, over and above incumbrances, she may also be entitled to dower. This can also he determined. But in the view we have taken of this ease, the children of the intestate have also interests in this estate, the rights to which and the extent of which can only be determined by bringing them into the case as parties. This, I think, was the error of the referee in dismissing the bill. The case should have stood open to have allowed the children to be brought in. So, too, the defendant, it appears, has received rents and profits of the estate, which, it is charged, has greatly increased in value, and in its rental or income. He ought to have accounted; and he is entitled to a reasonable consideration for the management of the estate. All these things can he established on another trial. I think the report should be set aside.
Judgment reversed and new trial granted, costs to abide the event.