#### In re Estate of Samuel Deaner, Deceased, Claim of Susan C. Deaner, Appellant.

Husband and wife: action by wife. Where a wife loans her hus-1 band money from her separate estate, taking his note therefor, she has a right under Code, section 3155, to maintain an action on the same against him during coverture.

Limitation of actions. The statute of limitations will run against 2 a debt *due*from a husband to his wife the same as in other cases.

*702Trusts. Where a wife turned her own money over to her hus-3 band, who gave his notes therefor and used the same as his own, it could not be regarded as held in trust by him in the absence of a showing that he agreed to so hold it for her.

*Appeal from Black Hawk District Court.*— HoN. E. C. Platt, Judge.

Tuesday, March 7, 1905.

Samuel DeaNee died in 1901, and bis widow, Susan 0. Deaner, was appointed administratrix of bis estate. On the 11th of November, 1901, she filed, as a claim against the estate, two promissory notes, dated June 20, 1884, and December 1, 1890, respectively — the first for $835, and the last for $500 — each bearing interest at the rate of six per cent, per annum, and payable on demand. A special administrator was appointed, who reported in favor of the allowance of the claim, but to this the heirs objected on the ground that the notes were barred by the statute of limitations. The court sustained this plea, and claimant appeals.

— *Affirmed.*

*Mullan &*Pickett, for appellant.

*Millar &*Williams, for* appellee.

Ladd, J.—

wipe: action by -wife. The notes upon which the claim against the estate of deceased is based were executed more than ten years prior to his death, and were payable on demand. The consideration was the loan of money belonging to claimant to her husband. To this claim the _ bar of the statute of limitations was interposed as a defense. The claimant contends that this ought not to have been sustained, for that the wife could not have maintained an action on the notes against her husband in his lifetime, and hence that the period of the statute did not begin to run until coverture had been removed by death, and *703further that, even if this be not so, the general statute of limitations does not apply to contracts between husband and wife. Neither of these propositions is so-und. Claimant had the right to contract with her husband with respect to her separate estate, and such was the money for which the notes were given. See *Logan v. Hall,*19 Iowa, 491; *Payne v. Wilson,*76 Iowa, 377; *Hoaglin v. Henderson & Co.,*119 Iowa, 720; *McElhaney v. McElhaney,*125 Iowa, 278. Section 3155 of the Code declares that, “ Should the husband or wife obtain possession or control of the property belonging to the other before or after marriage, the owner may maintain ah action therefor or for any right growing out of the same in the same manner and extent as if they were unmarried.” In borrowing her money, the deceased obtained possession of her property, and the agreement contained in the notes to repay conferred a right growing out of the same, which she, under the express provisions of the statute, was entitled to enforce in an action against him at any time after the execution of the notes. *Mereness v. First Nat. Bank,*112 Iowa, 11.

„ 2. Limitation of actions, No exception in behalf of married women, of actions against their husbands, is found in the statute of limitations. It provides that *“*actions may be brought within the times herein limited respectively, after their causes *° '*accrue and not afterwards, except when otherwise specially declared. * * * Those founded on written contracts * * * within ten years.” Section 3447, Code. As all exceptions not *“*otherwise specially declared ” are excluded, we are not permitted to insert any, even though we might think that, owing to the relation of the husband and wife, she should be relieved from the necessity of pressing her claims against her husband in order to keep them alive. That was a matter for legislative consideration, and does not constitute a reason for refusal by the courts to give effect to a specific statute to the contrary. *Wilson v. Wilson,*36 Cal. 447 (95 Am. Dec. 194) ; *Wyatt v. Wyatt,*81 *704Miss. 219 (32 South. Rep. 317) ; *Gray v. Gray,*13 Neb. 453 (14 N. W. Rep. 390) ; *Bromwell v. Schubert,*139 Ill. 424 (28 N. E. Rep. 1057) ; *Muus v.*Muus, 29 Minn. 115 (12 N. W. Rep. 343). And see, as recognizing the applicability of the statute, *Stewart v. McFarland,*84 Iowa, 55; *Bonbright v. Bonbright,*123 Iowa, 305; *Roberts v. Brothers,*119 Iowa, 309. The cases cited from States where the common law prevails- — that the wife may not sue the husband — are not in point, and those resting on statutes somewhat similar to ours do not meet our approval. See *Second Nat. Bank v. Merrill,*81 Wis. 151 (50 N. W. Rep. 505, 29 Am. St. Rep. 877); *Barnett v. Harsbarger,*105 Ind. Sup. 410 (5 N. E. Rep. 718). That the first of these was erroneous is conceded in the later case of *Brader v. Brader,*110 Wis. 423 (85 N. W. Rep. 681), though followed because-of property interests involved; and the reasons given in the last would have been more pertinent if offered in support of an amendment to the statute by the legislature.

3. Trusts. There is no ground for the suggestion that the money was retained by the husband as a trust fund. He is not shown to have agreed to hold it for her. On the contrary, he made use of it as his own, and, in the notes, . promised to repay. It was merely a debt of his to his wife, and could only have been enforced as such. *Muus v. Muus,*29 Minn. 115 (12 N. W. Rep. 343).

We conclude that the claim was barred, and was rightly rejected.— *Affirmed.*