#### CALVIN ROUSE *against*JOHN L. LEE *and others.*

Money arising by the sale of the wile’s land by a deed executed by the husband and wife has none of the characteristics of real estate, and after the death of the wife, goes to the husband *jure mariii.*

*(Little*v. McLendon, 5 Jones’ Eq. 216, cited and approved.)

Cause removed from the Court of Equity of Lenoir county.

A tract of land having descended to Rebecca Lee, wife of the defendant, John L. Lee, from her father, it was agreed between them that they would make sale of the samo, and as Lee was much in debt, and there was danger that the proceeds of such sale might be taken for Jus debts, it was agreed by parol that the proceeds should be paid into the hands of a trustee for her benefit. Accordingly, the land was sold by a joint deed of Lee arid his wife to one Wiley Rouse, she being privily examined, and said Wiley Rouse paid the purchase-money, $1900, to one Ohris'opher L. Davis, who agreed *to*hold it for the benefit of the wife, but afterwards agreeing *353to borrow the money for himself, he made his note for the residue not used by Mrs. Lee, to wit, $1400, to the plaintiff, who agreed that he would hold the money on the like trust, but no written memorial was ever made of this trust. Mrs. Lee having died, the plaintiff administered on her estate, and filed this bill against J. L. Lee, and the children of Lee and his wife, who are the heirs-at-law of Mrs. Lee, alleging that Lee claims the fund as husband of his late wife, and that the other defendants, the children, claim it as having the impress of realty, and he calls upon the parties to interplead and have their rights settled by a decree of the Court of Equity, so that he may be indemnified in paying it to the one party or the other.

The said John L. Lee and the children each answered the bill, claiming, as suggested above, and submitting that the Court should do what was right and equitable between them. The cause was set down for hearing on bill and answers, and sent to this Court.

, *J'. W. Bryan,*for the plaintiff.

*G.*Washington, for the defendants.

MáNly, J.

The question presented by the pleadings in this case, is, whether a fund in the hands of the complainant, as administrator of Eebecca Lee, should be paid to the husband as her legal representative, or (as it arose originally from the^sale of real estate) to her children, as heirs-at-law.

There is no ground for holding that this fund retained any of the characteristics of real property. It was competent for the parties, by a proper settlement, to have impressed this character upon it, but they have not done so, and it must, therefore, be transmitted according to the rules which govern the distribution of chattel property.

The agreement, by which the fund was subjected toa trust, seems to have had for its object the benefit of the wife alone, and, therefore, according to a well established principle of equity, upon her death, the fund passed to her husband. This was recently declared in this Court, in the case of *Little*v. *354
      *McLendon, 5*Jones’ Eq. 216, where the authorities will be found cited.

The parties interested may have a reference to the clerk of this Court, to take an account of the fund and report the residue after deducting the costs of administration, (the costs of this bill included,) which residue should be paid to the husband.

Pke OueiaM, Decree accordingly.