We have not found it necessary to decide to what precise extent the rights of Katharine Thompson and her husband Elisha Thompson would have been affected, during the continuance of the marriage relation between them, by the ante-nuptial articles entered into by the respective parties, in reference to the property which Katharine held in her own right *69before and at the time of her marriage. The case has been argned on the part of the defendant mainly upon grounds which would have been more applicable to questions of the right of the husband, or his creditors, to appropriate Katharine Thompson’s personal estate to the use of the husband, or in discharge of his debts. But the real inquiry here is as to the right of the administrator of Elisha Thompson to demand and recover choses in action, and moneys realized therefrom in the hands of an agent, who received them from Katharine Thompson in trust for her sole use, with the assent of her late husband. It is to be remarked that the question is not here raised by- the administrator of Elisha Thompson. No claim to these choses in action, or their proceeds, has ever been put forth by such administrator since his appointment, which took place in 1843. The present defendant is the party alleged to have received these funds directly from Katharine Thompson. He has the right however to raise the question to what party he is to be held to account.

The first inquiry is, whether the husband ever actually reduced these choses in action, held by the wife at the time of the marriage, to possession, by virtue of any marital rights, supposing such to have existed; for the husband being now dead, upon his decease, if the property had not already been reduced to possession and become absolutely his, his administrator could not by any acts of his change the rights of the respective parties. In aid of this inquiry, it is proper to refer to any acts of the husband, indicative of his purpose to permit these funds to continue to be the separate property of the wife. For this purpose we may look at the contract or stipulations of the husband prior to the marriage, to see what he proposed to do ; and that irrespectively of the question whether he was legally bound to carry his promise into effect. We find that stipulation on his part to have been, “ that she shall have the control and disposal of all the property she now possesses, and that she may do with the same at all times after the said marriage as she may think proper.” The facts in the case show no interference by him with her property from 1802 to 1805, the period during which they lived together. Upon a mutual separation agreed upon by *70the parties in 1805, it was directly stipulated by the husband in a sealed contract made with a third party, for the benefit of the wife, that he should permit his wife to use his name to collect whatever securities she might have, and to convert the same to her own proper use and benefit; the husband receiving from such third party a bond to save him and his estate harmless against any expense for her maintenance, or against her claiming dower in his estate.

Here we find a direct avowal on the part of the husband that he would not interfere with her property in these notes, but the same should continue to be held by her to her sole and separate use. This promise was literally fulfilled on his part. Neither during her lifetime, which extended to 1836, nor during his own, extending to 1843, did he do any act by way of asserting any right over these funds. The lifetime of the husband therefore passed away without reducing the same to his possession. His administrator has not attempted to exercise any control over them.

The case upon these facts is therefore most obviously one where the husband elected to treat the property as hers, as long as the coverture existed. It is a much stronger case than those familiarly known to us, where the husband had, by his declarations and acts, created a fund for the separate use of his wife, or allowed her to continue to enjoy .as her separate estate funds accruing from property that she had at the time of the marriage, or under some subsequent devise or descent of estate to her, as was held in Draper v. Jackson, 16 Mass. 480, Stanwood v. Stanwood, 17 Mass. 57, and Fisk v. Cushman, 6 Cush; 20. The court are of opinion that this action was properly instituted in the name of the administrator of Katharine Thompson, and that the defendant may be properly held to account to her legal representatives for any liabilities arising from his holding funds of hers, which had thus continued to be held as her separate property. Exceptions sustained.

Upon a new trial in the court of common pleas at December term 1857, it appeared that Hunt, who was an agent of the *71plaintiff’s intestate, had received money from her to invest forthwith; but that instead thereof he had fraudulently converted it to his own use; and that he had kept himself concealed, so that the plaintiff had been unable to make any demand on him. The defendant contended that this action could not be maintained without proof of a previous demand; and, if it could, that interest should be allowed only from the date of the writ. But Briggs, J. ruled that the action would lie without a previous demand, and that interest might be recovered from, the time when Hunt received the money. The defendant alleged exceptions, which were argued at October term 1858, and

Overruled by this court.