The opinion of the Court was delivered by
Sergeant, J.It is far from being clear, that the trustees were guilty of any departure from the trust, in purchasing in their own name and with the trust moneys, at the instance of the wife, furniture to be placed in a tavern in the possession of the husband and wife, and to be there used and employed by them for the purpose of gaining their common livelihood, and maintaining their family. The wife is by the settlement the owner of the estate to every purpose, except that it is to be separate, and of course to be exempt from the control or liability of the husband. The whole issues and proceeds are to be paid over to her during her husband’s life,, and if she survived, to be hers absolutely: if not, to go according to her appointment. If the trustees converted the moneys into property with the view of benefiting the cestui que trust and at her instance, and placed it in her possession as her separate estate, it still continues so. Neither a coui’t of law nor of equity would, in such case, forfeit the property, but on the contrary would guard the rights of the wife, by following it in its converted shape and holding it to continue trust property. At law if the trust property be money and it be converted into any other chattel, that chattel or the produce will belong to the cestui que trust; and the same rule is said to prevail inequity: Willis on Trusts, 87; 2 Madd. Chan. 149, and cases referred to: but in such case it is presumed the party so entitled has his election eithe'r to take the chattel or make the trustee personally responsible for the fund with which the chattel has been purchased. lb. Trust money may be followed into land when it is clearly shown to have been invested in a purchase of that kind ; and parol evidence is admissible to prove that fact, though express proof must be given to show that the land was bought with the trust money. 1 Hovenden on Frauds, 468, 471. The wife, with the consent of the trustees, may allow her husband to use her separate property: she may give him the income as it is received; and here she does no more than allow him through the medium of the trustees, to use her furniture for their common benefit. To say this was a departure from the trust, is a petitio principii. It might be, if the property were thereby lost: but that is a matter between her and the trustees: and between them it is material that it was done at her request, and that she was the owner in equity. 3 Atk. 444. But whether the property lost, remains to be determined by the other question, what were the rights of the creditors against property thus situated: whether it still remained the separate estate of the wife, under the control of the trustees, or was divested by the execution and sale.
*124The principle is said to be, that the wife’s separate estate placed in the possession of the husband, is protected against his creditors, except where he carries on trade with the goods belonging to his wife, or his possession is inconsistent with the deed. See cases collected 1 Wats. Sheriff, 183. Assuming this for the present to .be the correct doctrine, the furniture here was. not conveyed to the husband, but placed in the tavern as the separate property of the wife, to be there kept and used by the family and guests, as it would be in a private family: it was bought with the wife’s money,, by the concurrence and in the name of the trustees, and continued under their power and control; and they might at any time have-seized and removed it, if circumstances had rendered that course proper to be taken, accounting, of course, to the cestui que trust for their acts. It was constructively in their possession. I see no intention to give the husband the property; he was not authorized to sell or to traffic with it, or make title to, it directly or indirectly, or render it liable to his creditorsnor does the nature of the property or- business, raise an inference that he was authorized to carry on any trade in respect to the property.
As to inconsistency with the deed, it was an appropriation of the proceeds to- h.er use in a different form from money. If the trustees thought proper to do this, and she preferred it, it \yas because .they deemed it a more beneficial mode of enjoying the proceeds ; .ana it was one which they had a right, under the settlement, to adopt without thereby divesting her title, if they saw proper to take the¡ responsibility of employing the fund in this manner.
Judgment reversed and venire facias de novo awarded.