On appeal to the district court of Bice county from the decision of the probate court in the matter of the account of this plaintiff, who was the wife of Thomas Garvey, against his estate, issues were duly framed between the parties to this action, and, upon a trial by jury, special findings upon the several issues were made by them, by which it is found that' the plaintiff loaned and advanced to her husband in March, 1857, the sum of $200, and did, also, after his decease, on September 8, 1859, pay the amount of the expenses of his last sickness and of his funeral, which had been previously, at her request, and on her promise of repayment, advanced therefor by one Patrick Garvey, being the sum of $205.50; that Thomas Garvey died in May, 1858, and Patrick Garvey was appointed administrator of his estate in July, 1858, and subsequently died, leaving the estate unsettled; that no commissioners were ap*212pointed to adjust claims against the estate; that defendant was appointed administrator in 1877, and thereafter, for the first time, an order was made by the probate court for the hearing and adjusting of claims. This appeal is from an order denying a motion for a new trial, made by defendant upon the ground that the verdict was not justified by the evidence and was contrary to law. It brings before us, therefore, the propriety of the findings of the jury. As there do not appear to have been any errors in the rulings of the court at the trial, we are to consider, chiefly, the sufficiency of the evidence to support the findings.
1. In support of the first item of plaintiff’s claim, it appears from the evidence that the plaintiff advanced the money to her husband to enable him to pre-empt a piece of land. The alleged debt was not evidenced by any writing, and there is no other direct evidence as to the character of the transaction — whether a loan or a gift — than the fact that she furnished the same to him as above stated, he having no means of his own to purchase the land with. Upon a pre-emption he would take the title, and the confidential relations of the parties would account for the informal character of the transaction, and for her not exacting security for payment prior to his death the year following. Under the circumstances it was. not necessarily a gift, and we think the jury might, as they have done, find otherwise. As between husband and wife, in such cases, the character of the transaction, whether a gift, or a loan, or a trust, is a question of intention, depending on the facts and circumstances of each case. Schou-ler on Husband & Wife, § 395. It is not necessary that there should be any formal promise or agreement to repay the money, in order to establish the right of the wife to recover. Steadman v. Wilbur, 7 R. I. 481, 487.
The Revised Statutes of 1851 saved to the wife the right to her separate property, the title to which was not divested by the husband’s possession, and her rights were protected without the intervention of trustees. She was also entitled to the increase and profits thereof, though in her husband’s possession. Williams v. McGrade, 13 Minn. 39, (46.) The court will also carefully protect the wife’s interest from suffering loss by reason of the confidential rela*213tions of the parties. Rich v. Rich, 12 Minn. 369, (468;) Boyd v. De La Montagnie, 73 N. Y. 498. In Teller v. Bishop, 8 Minn. 195, (226,) the wife’s equity supported a repayment to her of moneys used by her husband, even as against his creditors. Where, however, her money is used with her consent for family expenses, or is by her suffered to be appropriated by her husband in his business, or otherwise, under circumstances clearly inconsistent with an intention to claim a repayment, she cannot recover it from his estate. But the mere receipt of her money or property by the husband, which it is. natural and not unusual to intrust to him, is at best but slight evidence of a gift. The intention on her part to divest her right to it by gift ought to appear, otherwise she may recover of him or his estate what of right can be ascertained to be hers. Grabill v. Moyer, 45 Pa. St. 530; Patten v. Patten, 75 Ill. 446; Whitford v. Daggett, 84 Ill. 144; Boyd v. De La Montagnie, supra; Green v. Carlill, L. R. 4 Ch. Div. 882; Smyley v. Reese, 53 Ala. 89, 101. We think there is enough in the evidence to sustain the conclusion of the jury that the transaction was not a gift, nor intended to be such, and consequently he was liable to her for the amount so advanced by her. As this money was used by the husband in the purchase of property, and not kept or invested for her, plaintiff is entitled to interest, as other creditors, unless the claim is barred.
2. As to the second item allowed, the uneonfcradicted evidence in support of her claim is that she assumed and paid the necessary expenses of her husband’s last sickness and funeral out of her own separate property. In the first instance they were advanced and paid, at her request, by Patrick Garvey, on her promise to repay him, which she did under the arrangement that was made between them. She was the responsible party who effected the payment and settlement of these charges. It does not concern the defendant in what way she made provision for the payment of these necessary expenses of her deceased husband. The claims were, it seems, just and reasonable, and were unquestionably a proper charge against his estate. He was entitled to a suitable burial at the expense of his estate, (Smyley v. Reese, 53 Ala. 89, 97,) and the expenses of his last sickness and funeral were expressly made preferred claims against his estate by *214statute. Pub. St. 1858, c. 44, § 36. It should not be deemed officious intermeddling for the widow, under such circumstances, to interest herself in making the proper provisions for such necessary expenditures, and the law raises an implied obligation on the part of the legal representatives of the deceased to discharge such liability incurred by her. See Patterson v. Patterson, 59 N. Y. 574, 583-4, and eases cited. If she had paid these expenses in the first instance, and the administrator had afterwards repaid the amount to her, he would have been entitled to be allowed for them out of the assets. Patterson v. Patterson, supra, 585. We think this claim of the plaintiff also valid.
3. As to the plea of the statute of limitations, there can be no question that the evidence supports the special findings of the jury. Whether they should have been more full or definite is a question not raised by defendant. He did not at the time of its rendition, nor does he now, complain of the form of the verdict. Bixby v. Wilkinson, 27 Minn. 262. The object of this appeal is to set aside the verdict, and for a new trial, on the grounds above stated. It must be apparent that there is no reason for sending the case back to the jury to find again upon the questions of fact. It is equally apparent that, as respects the statute of limitations, we are not called upon to determine, on this appeal, what the general verdict should have been upon the facts found, or what judgment ought to be rendered thereon in the case.
It follows that the order denying a new trial should be affirmed.