#### BOUGHER *v.*THE HEIRS AND ADMINISTRATORS OF MILLER.

Ante nuptial agreement — after acquired funds — relief in equity.

Where an ante-nuptial agreement is made, that each party should keep a separate purse, manage the estate and enjoy the proceeds as their own, which was accordingly done, as to the funds on hand, but the wife during coverture received a legacy, which she gave to the husband, and told him to buy lot 136 for her, which he did, and took the deed to himself, without her knowledge, her heir, after her death, cannot charge the husband as trustee for the proceeds of the lot sold.

The relief in equity must be according to the case made in the bill.

*Quere*— If an ante-nuptial agreement for a wife to have her own earnings will be executed?

Bill in Chancery to enforce an ante-nuptial agreement.

*Stoddard*and Davies, for the complainant,

cited 2 *John. Ch.*581.

Crane, for defendants, cited 11 *John. R.*446.

*329Wright, J.

The bill stated that the complainant’s mother being possessed of considerable personal property, made a contract of a marriage with Miller, now deceased, by which each party was to have the control of the personal property held by them. That in pursuance of this contract, the marriage took place, and the parties lived in accordance with it, each keeping a separate purse, till he died. That during the coverture, Miller purchased for his wife, with her money, part of lot 106, in Dayton, and took the deed to himself, without her knowledge, she being a German, and unable to read English. After her death, he sold the lot for *$1000,*and conveyed to the purchaser, and died. The complainant, as heir at law of the wife, prays that the lot may be considered as held in trust for his mother, and to have the proceeds paid out of decedent’s estate to him with interest.

It is in evidence, that she had eighteen or nineteen hundred dollars before her marriagé, and contracted in writing that that sum should be laid out in the purchase of real estate, or stock for her sole use and benefit. The marriage took place in 1810; Miller kept the contract, and it can’t be found. In 1813, the mother having received other money, amounting to about eight hundred dollars, directed her husband to purchase the part of lot 106, which he did purchase, and took the conveyance to himself. She died in 1822, without being apprized of this, so far as appears.

We think it probable there is something wrong in this business, but no relief can be decreed in the present aspect of the case, if at all, because the case made in proof is not the one made in the bilk There is still another difficulty; as the proof stands, the ante-nuptial contract only embraced the money then on hand, whereas, the purchase of lot 106, and whatever agreement was made in respect of it, was of money received several years after the marriage, and made during coverture. It will be well to consider whether such a contract can be enforced in equity, whatever fraud may have attended the transaction between the .husband and wife. If counsel have been misinformed, and think the case can be bettered, leave may be taken to amend the bill in sixty days, on payment of all the costs, or in default the bill will stand dismissed at his costs, and be remanded. Leave was taken.