Fleming

This is an appeal from a judgment entered upon an order sustaining a demurrer to an amended complaint.

Substantially and so far as material the allegations of the amended complaint are as follows: That prior to the year 1895 the plaintiff had intrusted to William Hale for the purpose of investment various sums of money, which it was agreed should be held by William Hale in trust, and the profits divided equally between them; that in said year an accounting was had, and upon such accounting it was agreed and determined that Hale at that time had in his hands, in trust for the use and benefit of plaintiff, the sum of $5,000, and that it was further agreed that this sum should remain in the hands of Hale, to be reinvested under the same conditions and trust as before, to wit, Hale to retain in trust for the benefit of plaintiff the $5,000 and one-half of all the profits arising out of or on account of said fund. “That from time to time since the said year of 1895 up to the time of the death of said William Hale, said William Hale, deceased, as trustee, acknowledged and stated to the said plaintiff that the said $5,000.00 held in trust by the said William Hale, deceased, for the use…