McDermott's Appeal

Mr. Justice Paxsost delivered the opinion ‘of the court, The money in controversy was the money of the husband, and the fact that his wife helped him to earn it does not make any difference. It is settled by authority that the earnings of the wife belong to the husband save in certain exceptional eases specified in various Acts of Assembly. Unless, therefore, it can be shown that there was a gift of the money by the appellant to his wife, the decree of the court below cannot be sustained. In the report of audit the learned Judge came to the conclusion that it was a gift, and in his opinion upon the exception says: “Was it a gift? Why not conclude that it was? What is there unreasonable about it?” We answer that we cannot conclude it was a gift because there was no evidence of it and money which confessedly belongs to a man cannot be taken from him without evidence. We do not differ from the learned Judge as to any of the facts found, but we cannot concur in his deductions from those facts. The reasons upon which he based his conclusions may be summarized as follows: That the business was carried on at the old place of business of the wife ; that it was chiefly through her skill, industry, and economy, aided by her friends, that the money was acquired; that he had a special deposit [367] of his own, and that she did not conceal from him the fact that she was keeping the particular deposit in question in her own name ; that immediately after her death he inquired for the savings bank book and said to the daughter something about the money of right should belong to him ; and lastty, assuming that he knew the fact of deposit in her own name, he could not have placed the fund more completely under her control and exclusive possession. Upon such weak and inconclusive facts as these, we are asked to hold that the appellant intended that the amount of this deposit, $4,840.73, by far the larger part of his estate, should become the absolute property of his wife, so as to be entirely beyond liis control, and go to her next of kin in case of her death. There is no evidence that he knew of this deposit in his wife’s name until after her death; there is evidence that lie was an ignorant man and could neither read nor write; that his wife was an active business woman; that she attended to the shop, kept the books, and did most of the bank business. Even had the fact been that the proceeds of the business were kept by his wife in lier own name with his knowledge, it would afford no presumption under the circumstances that he intended an irrevocable gift to her of the money. Her possession of it was his possession, as much so as if she had kept the money in a safe or a bureau instead of in the bank. It is a common thing in every-day experience for a woman to have the possession and control of her husband’s money and the husband of the wife’s, and if from such fact we were to draw the conclusion that the custodian was the owner of the money, it would lead to unexpected results. But in this case there is no satisfactory evidence that he even knew the deposit was in his wife’s ñamo; on the contrary, the presumptions are all the other way. And, as before observed, no matter how much the wife’s aid may have contributed to make the money, that circumstance did not change the fact of its ownership, nor does it raise any presumption of a gift, while the claim he made when inquiring for the bank book tends to negative such presumption. That the mere possession of money by the wife is not sufficient evidence of .her ownership was settled by Parvin v. Capewell, 9 Wr., 89, where it was said: “A mere gift of money to a wife is not a settlement of it as her separate estate, for it may be for safe keeping and deposit, without any intention to divest the husband’s title. And her possession of funds ordinarily implies no more than that she is holding them for her husband.” This is settled law, and is peculiarly applicable to this case. There is nob a scintilla of proof of any intention of the appellant to make a gift of this money; nothing can be [368] implied from the facts bejmnd a mere custody thereof on the part of the wife. The cases cited by the learned Judge do not sustain his conclusions. Herr’s Appeal, 5 W. & S., 494, was a case in which there was strong evidence of a gift and this court said: “But such gift must be established by clear and convincing proof, not only of the act of donation and deliver}r, but of her separate custody of it.” The same doctrine is held in Tripner v. Abrahams, 11 Wr., 220. In Bachman v. Killinger, 5 P. F. S., 414, it was held that the possession by the wife of the husband's moneys, security, and property is very slight evidence of the transfer of the ownership, and his possession of her chattels ought to be considered still less evidence of title in him. In Crawford’s Appeal, 11 P. F. S., 52, the husband informed his wife that he had added $3,000 to her money; he directed his clerk to credit her in his books with the $3,000 as cash received from her, and it was done. He credited her regularly with the interest of that sum in connection with the other sums belonging to her until his death. Held that this was an executed gift followed by an express trust for his wife and payable to her from his estate, but that it could not be supported as a debt. In addition, it appeared that the husband had that amount of his wife’s money in his possession. Here, there was a plain intent to make a gift followed by a positive unequivocal act. But where there is a mere permissive act, such as to allow the wife to be a custodian of his money, I know of no case in which it has been held that a gift can be implied from such act. We need not pursue the subject further. We can see nothing in the case from which a gift of this money by the husband to the wife can be reasonably implied. The money appears to have been received by the administrator from the cashier with the understanding that the question of ownership should be settled in the Orphans’ Court upon distribution. There also appears to be a proceeding pending in the Orphans’ Court to strike this item from the administration account. As the money has actually gone into the estate of the wife, we may treat the appellant as her creditor, and to prevent circuity of action we have concluded to dispose of the main question upon this appeal. The decree is reversed at the costs of the appellees, and it is ordered that the deposit less the amount’ due the attaching creditors be paid to appellant.