#### Henry L. Nostrand *et al.,*Ex’rs, Resp’ts, *v.*John Ditmis *et al.,*Ex’rs, App’lts.1

*(Court of Appeals, Second Division,*

*Filed June 23, 1891.)*

1. Limitation of action—Husband and wife—Mismanagement of wife’s ESTATE.

On reference of a claim against a decedent’s estate by his wife, the *903referee found that she had a separate estate which was managed by her husband; that he kept an account in which he credited himself with sums claimed to have been paid out for her; that certain of said charges were improper and for disbursements for which he was legally liable, but that the statute of limitations ran against two items entered six years prior to the date of the action. *Held,*error; that under the rule that payments made upon an account will, if nothing appears to the contrary, be deemed applied to the earlier items of it, the amount remaining unpaid may be found in or represented by the later ones, the moneys improperly entered as paid out or charged by him would be treated as still remaining in his hands.

2. Same.

The use by the wife of her own money for the purchase of clothing and necessaries for herself would not create a liability to her of her husband for the amount so expended without the aid of circumstances out of which might arise a promise to repay it to her.

Appeal from, judgment entered upon order of the general term of the supreme court in the second judicial department, affirming order confirming report of referee and judgment thereupon, entered in favor of the plaintiffs.

*E.*Countryman, for app’lts; *Josiah T.*Marean, for resp’ts.

1

 Reversing 33 N. Y. State Rep., 1103.

Bradley, J.

The subject of controversy is a claim made by the plaintiff’s testatrix, who has died since the trial, against the estate of the defendants’ testator and referred pursuant to the statute. Those persons intermarried in the year 1859, and shortly thereafter the husband took the possession, care and management of the separate estate of his wife consisting of property both real and personal, and opened and kept an account of the rents, issues, profits and income of the property and of disbursements and payments until near the time of his death, which occurred March 23, 1887. The referee found that certain of such disbursements so charged from and after September 15, 1869, by Mr. Johnson were on his own account, in payment of his debts and moneys given to Mrs. Johnson to pay for clothing and other necessaries suitable to her position in society, and that of the money so received by him he “ retained and never paid over ” to her the sum of 87,814.83 the amount of items improperly charged against such rents, profits and income which he received; and directed judgment for that sum against the defendants. The account through that period of time consisted of a large number of items debited and credited to the defendants’ testator. And the plaintiff’s claim was founded upon such account and made up of items alleged to have been improperly credited to himself as for disbursements and payments to and on account of Mrs. Johnson. A portion of them was entered in the account more than six years prior to the death of the defendants’ testator and some of them within that time. And to the refusal of the referee to find that the claim on such of them in question as were entered prior to March 23, 1881, was barred by the statute of limitations the defendants excepted, and now insist that such refusal was error.

It may be observed that the amount of such rents, profits and income received by and debited to Mr. Johnson within six years preceding his death exceeded the amount of the recovery; and in *904view of the rule that payments made upon an account will, if nothing appears to the contrary, be deemed applied upon the earlier items of it, the amount remaining unpaid may be found in or represented by the later ones. And for that purpose the moneys represented by entries of disbursements improperly made or charged'by the defendants’ testator, on his own account, would be treated in behalf of his wife as still remaining in his bands. Applying that rule to the present case, the claim would be relieved from the bar of the statute. *Thompson*v. *St. Nicholas Nat. Bank,*113 N. Y., 326, 338; 22 n. Y. State Rep., 929.

It is, however, urged that this cannot be done in this case, because it appears that from time to time prior to 1883 balances were brought down in the account, thus producing an account stated in each instance. Although the evidence may have warranted the conclusion that such was the effect of the several balances so represented, it cannot, as matter of law, be so held, as it does not necessarily appear that it was done by the consent or acquiescence of the plaintiff’s testatrix. This was at least a question of fact for the determination of the referee, and there was no error in his refusal to find as so requested.

There is a further inquiry presenting the question of the sufficiency of proof to justify the allowance of items in the account of cash which the referee found was given to Mrs. Johnson “to pay for clothing and other necessaries. It embraced such entries without anything appearing in connection with them showing the purpose for which the moneys were given to her, and as they appear in the account as disbursements they, without some explanation, must be deemed to have been properly charged as such, since the account was put in evidence by her.

The only other evidence on the subject having relation to the use to which the moneys were applied was given by her testimony as follows: '

> “ Q. The cash items that are charged against you in the account. What was the cash used for ? A. For my support and clothing and a great deal that I needed and household expenses.”

To the introduction of this evidence objection and exception were in due time taken by the defendants’ counsel. And if it tended to prove the purpose for which the money was given to her by the defendants’ testator it was inadmissible. *Tooley*v. Bacon, 70 N. Y., 34; *Clift*v. *Moses,*112 id., 426; 21 N. Y. State Rep., 777. But it is not apparent that such was its effect, and assuming that it was not, there was no evidence to justify the inference that it was handed to her for any purpose other than is represented by the fact that the moneys were entered in the account as disbursements or payments against the rents, profits and income received by the husband from the separate estate of the wife, and in satisfaction *pro tanto*of her claim against him therefor. And the mere fact that the moneys paid to her by him on that account were used by her for the purposes mentioned in her evidence, did not warrant the conclusion that those entries were improperly made in the account between them, or justify the allowance of the amount of them as a claim for the *905purpose of recovery against the defendants. The use by the wife of her own money for the purchase of clothing and necessaries for herself would not create a liability to her of her husband for the amount so expended without the aid of circumstances out of which might arise a promise to repay it to her., *Jacques*v. *M. E. Church,*17 Johns., 548; *Hendricks*v. *Isaacs,*117 N. Y., 411; 27 N. Y. State Rep., 449 ; *T. N. Bank*v. Guenther, 123 N. Y., 568 ; 34 N. Y. State Rep., 478; *Romer v. Koch,*49 Hun, 483 ; 18 N. Y. State Rep., 909. The fact that she received the moneys so charged in the account is not questioned. And nothing appears in the evidence to justify the conclusion of the referee that Mrs. Johnson was entitled to recover the amount for which recovery was allowed by him of the cash items so charged to her or credited to the defendants’ testator as payments on account of moneys received by him from her separate estate.

The judgment should be reversed and a new trial granted, costs to abide the event

All concur.