delivered the opinion of the court on a motion for a rehearing.
The learned counsel for the plaintiff seems not to have understood, or not to have given proper consideration to, the principles upon which this case was decided by the circuit court, and by this court; otherwise this appeal would not have been taken, and this motion for rehearing would not have been filed. We are now urged to reopen the case ; and we are urged to do this on the ground that in the opinion we have overlooked or mistaken conceded facts in the case. It is claimed that we have erroneously stated two important facts: First, that we have stated that Tolle paid the second note in his lifetime ; secondly, that Mrs. Tolle proved it up against her deceased husband’s estate in her own favor. The evidence in the record as to who paid the note, is not clear, and this was so stated in the opinion. The German consul testifies that Tolle paid it; but as it did not mature until shortly after his death, and as it appears to have been proved up against his estate in favor of the Brand heirs, it is not probable' that he paid it in his lifetime, and we will concede that he did not. It nevertheless remains that it was paid by some one, and there was no competent evidence presented at the trial to show who paid it, except the evidence of Dr. Gerlich, who testified that Tolle paid it. The court below, in its decree, finds that it was paid, but does not find who paid it. Then, as to the statement in the opinion that Mrs. Tolle proved'it up as a personal claim against Mr. Tolle’s estate, it is said that we are mistaken in that. Well, it appears that it was proved up against the -estate-by Maria Theresa Bokamp and others, who were the heirs of Brand. But what then? Mrs. Tolle got the dividend, according to the affidavit which she made when asking for leave to intervene. The note was paid to the Bokamp heirs by some one. This is clear. Then, according to Mrs. Tolle’s claim made in this affidavit, it was paid by *73her out of her separate estate, and she took an assignment of it, and, as such assignee, received the dividend out of her deceased husband’s estate, which would otherwise have gone to the Bokamp heirs.
Now, let us concede all that the plaintiff claims in respect of the facts of this case; let us concede that the second note was not paid by Mr. Tolle in his lifetime, but that after his death Mrs. Tolle paid it out of her separate estate ; let us concede that she is the owner of it, and has received back from Mr. Tolle’s estate but fifteen per cent of the amount which it represented at the time when the dividend to Tolle’s creditors was made. And what then? The result is not changed in the slightest. As stated in the opinion, Mrs. Tolle could not acquire any higher right to the trust-fund by paying this note than Mr. Tolle would have had had he paid it in his lifetime, nor would it have made made any difference in the result had she paid the third, the fourth, or even the fifth note. Upon obvious principles of equity, which we have endeavored to make clear in the-opinion, and which were made clear in the opinion of the circuit court, as long as Tolle, or the estate of Tolle, stood indebted to the Brand heirs as surety for Barth, in a larger amount than the amount of this trust-fund, they, and not he or his creditors, are entitled in equity to this fund. The struggle over the question whether the credit should have been made upon the second note or upon the third note, ignores entirely this principle. It is utterly immaterial upon what note held by the Brand heirs the credit was made. It might just as well have been made upon the sixth note as upon the third note. The material thing is, that they get the money, and that Tolle’s estate gets the proper credit, and that some one else does not get the money, and that a note held by some one else does not receive the credit.
We have decided this case upon an obvious rule of equity, that where a principal debtor sets apart a fund to *74indemnify Ms surety against a liability which will probably fall upon his surety, and this liability accrues against the principal debtor and the surety, and both fail to discharge it, a court of equity will divert the fund to the payment of the common creditor; and it will none the less do this because the surety may have discharged some portion of the indebtedness for which he stood liable, jirovided that there remains unpaid a larger amount than the amount of the fund, for the payment of which he likewise stands liable.
We cannot hope to make ourselves more clear. From the first, the plaintiff’s case has proceeded in the face of these obvious principles of equity.
The motion for rehearing is overruled, Judge Bakewell concurring, Judge Lewis not sitting.