Governor, for use of, v. Ext'rs of Hooker-Opinion of Court. proving the will and in accepting the office from his immediate testator, accepts not only all the trusts imposed by the immediate will under which he acts, but also all the trusts in respect to the assets which come to his hands with which his immediate testator was charged; and he must execute those trusts until he is relieved by a new appointment in the Probate Court and a settlement and payment over of the assets. He will not be allowed to accept the trusts created by his immediate testator and to repudiate those with which his testator was himself charged. 2 Perry on Trusts, §264; Mitchell et al., Ex'rs., vs. Adams, › Iredell, L., 298; Schenck vs. Schenck, 1 C. E. Green, N. J., Ch. 174; Worth vs. McAden, 1 Dev. & Bat. Eq., 199, 209. The trust fund coming to the hands of the executors is held by them, not as guardians but as the legal representative of the guardian, for the purposes of the trust, and not otherwise, and they are in no better or other position in respect to the statute of limitations than would be the guardian himself if he were living. The suit is not brought to recover an ordinary debt due from the testator, but to recover money in his possession and in the possession of his representatives as custodians, belonging to the ward. Neither is the statute of non-claim pleadable by these executors as such trustees for the same reason. The claim here made is not strictly that of a past due indebtedness of the testator to the plaintiff, for in his lifetime he owed no debt to the ward who was an infant, and no cause of action had accrued because until her majority he rightfully held her money for her use. No right of action accrued until she became of lawful age, and then it accrued against the executors because they had become the trustees holding the trust money. An executor is liable upon an obligation or note which becomes payable subsequent to the death of the Governor, for use of, v. Ext'rs of Hooker-Opinion of Court. testator. (3 Williams on Ex'rs., 6 Am. Ed., 1826.) Neither did a right of action arise in this case solely because the guardian had given a bond binding himself to account to and pay over the money to her, but it accrued by reason that he had her money in his hands; and the executors, as we have seen, stand in his place in respect to it. They stand in the double relation of executors representing the estate of the testator, and trustees holding the funds of the ward by virtue of being executors and legal representatives of the estate. As such trustees they represented the ward, and it was their duty to withhold her money from liability to pay the general debts and from distribution. They are bound by the trust resting upon the guardian. The money does not belong to the general assets of the estate. In Sanderson's Adm'rs vs. Sanderson, 18 Fla., 820, 846, a claim against the estate of the intestate due to an administrator was objected to because it had not been "presented" under the statute of non-claim; and it was held upon principle and authority that being himself the creditor it was not necessary to enact the absurd performance of presenting his own claim to himself in his capacity of administrator, but if his demand was legitimate he could retain it out of the assets, the estate being solvent. Here also it seems that these executors holding this fund in trust and as trustees representing the ward, it was unnecessary that they should "present" this claim to themselves as executors. The amount due to the ward was known by the accounting had with the Probate Court in 1867 by the guardian as shown by the records of the same court from which the letters testamentary were issued to these defendants. No further accounting by the guardian can now be had because he is not in existence. Where a complaint alleged that certain funds were held Martinez et al. v. Ward et als.-Syllabus. by A. at the time of his death in trust for the plaintiff, and that the defendants, the executors of A., had refused to account to the plaintiff for such funds, it was held that a good cause of action was stated. King vs. Lawrence, 14 Wis., 238. The court erred, therefore, in overruling the demurrer of the plaintiff to the third, fourth and additional pleas of limitation and non-claim. The plaintiffs' replication to these pleas setting up infancy, coverture, &c., in avoidance of the statute of limitation, tendered an immaterial issue, and was therefore demurrable, but as the demurrer of the defendants thereto reached all defects in the pleas replied to, the defendants were not entitled to judgment upon such demurrer. The judgment dismissing the suit for the causes stated is reversed and the cause remanded, with directions to enter judgment for plaintiff upon the demurrer to the third, fourth and additional pleas, and for such further proceedings as may be had consistent with the practice of the court. F. P. MARTINEZ ET AL., APPELLANTS, VS. JAMES WARD ET ALS., APPELLEES. 1. Chapter 3130, Laws of 1879, (McClellan's Digest, page 713,) provid· ing that a married woman may by petition and proofs become a free dealer, &c., as if unmarried under a decree and license granted by the Circuit Judge in equity, does not attempt to confer legislative power upon the Judge, and is not unconstitutional upon the ground that the action of the Judge is not judicial in its character. 2. A married woman, so licensed, may purchase goods for cash or on credit, and engage in trade as though she was not married, and the fact that her husband has signed a note with her and joined Martinez et al. v. Ward et als.-Argument of Counsel. in a mortgage to secure it, the note being given for money borrowed by her, aud for her separate use, and no part of it having been paid by him, gives him no interest in the money, or in goods purchased by her with it for the purpose of trading on her own account, and his creditors cannot subject it to the satisfaction of his debts. 3. A married woman, so licensed, may employ her husband as a clerk or assistant in the business carried on by her as a trader, he having no other interest in the concern, without subjecting her goods to the payment of his debts beyond the value of his services over and above the expenses of supporting him and his family. 4. The purpose of the act was to enable a married woman, so licensed, to engage in trade and accumulate property in her own right and not liable to be subjected to the payment of the debts of an insolvent husband. Appeal from the Circuit Court for Escambia county. Jno. C. Avery and Wm. A. Blount for Appellants. This is a proper case for equitable relief. Ordinary means have been exhausted. 2 Wait's Actions & Defences, 412. Any species of equitable property may thus be reached to satisfy a judgment. Ibid., 412. The property sought to be reached is such that it could not be reached at law. Freeman on Ex., 425; 49 Mo., 565; 63 N. C., 283; 1 Paige, 637; 4 Johns. Ch., 450; 2 Atk., 600; 37 Geo., 170. Appellants contend that the record shows a case of legal fraud on the part of Ward and his wife against his creditors, and that it also shows a case of actual fraud. First, as to the legal fraud. Chapter 3130 of the Laws of Florida is unconstitutional, because it undertakes to vest legislative power in Circuit Judges. Chap. 3, Const. of Fla. "That which distinguishes a judicial from a legislative Martinez et al. v. Ward et als.-Argument of Counsel. act is, that one is a determination of what the existing law is in relation to some exising thing done or happened, whilst the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions." Cool. Con. Lim., 91. The proceeding created by Chapter 3130 undertakes to empower a Judge to say, not what the law is, but what it should be in the future as to the married woman who shall, in the manner pointed out, put the court in motion. The action is neither in personam nor in rem. There is neither plaintiff nor defendant. Now, if this act is unconstitutional and invalid, then the rights of the creditors of James Ward are as if the act had not been passed and the general law, uncontrolled by statute, applies. Under that law the rights of the creditor are: I. To subject the proceeds of Ward's labor; and he cannot bestow upon his wife his future earnings, without consideration, for that would be a fraudulent conveyance. Glidden vs. Taylor, 16 Ohio St., 509, 521; Bump on Fraud. Conv., 270, 271, 246-7-8; Wilson vs. Loomis, 55 Ill., 352; Nat. Bk. vs. Sprague, 5 C. E. Green, 13; Quidert vs. Pergeaux, 3 C. E. Green, 472. Nor can he do this indirectly by carrying on business in his wife's name. Bump, 271. 2. To subject the proceeds of his wife's labor. These are his property, and he cannot deprive the creditors of their right to subject them. (Bump, 265-6 and 272; Wilder vs. Abernathy, 54 Ala., 644; S. C., 25; Am. Rep., 734.) And this rule is not altered by the Constitution, Chap. IV., Sec. 26, or the Statutes, (act March 6, 1845,) neither of which mentions acquisition by labor. The vesting in her of the proceeds of her labor is not implied from the Statutes and Constitution allowing her to ac |