The opinion of the court was delivered, November 21st 1867, by

We think the court erred in rejecting the testimony of the defendant below. The plaintiff had shown that Cox was a trustee of the money handed to him by Mrs. Kine for her children, or some of them. He set up no ownership for himself. As a trustee he was, therefore, competent under the Act of March 27th 1865 : Bright. Dig. 1389.

His testimony was also material to supply the indefiniteness in the testimony of the plaintiff by showing the time and manner of the gift, and the number of children for whom he held it in trust.

But it is thought the offer became immaterial on the ground that the money ought at all events to be recovered for administration, leaving the trustee to receive the remainder of the fund under the trust.

The effect of this would be to subject the fund to the payment of all of the debts of Mrs. Kine, subsequent as well as prior to the gift; and to the costs of administration. But the trust, if available at all, took effect in the lifetime of Mrs. Kine, vesting the property then in the trustee, and not leaving it to descend into her estate at her death. The trustee had a right to retain the fund for the trust, unless the trust itself could be impeached for fraud. But this was a matter subsequent in the order of proof.

The trustee had a right first to make out his case by full proof before it was arrested. Then, if the administrator could impugn it for a fraud upon the rights of Mrs. Kine’s creditors, he might do so in order to restore the fund to her estate for administration. The existence of debts prior to the gift was a fact for the jury.

The defendant, as trustee, had, therefore, a right to use his own testimony for the benefit of his cestui que trust, leaving the administrator to attack it if he could on the ground of a fraud upon the rights of creditors.

The 1st and 3d errors are not sustained; but for the 2d the judgment is reversed, and a venire facias de novo is awarded.