Moyer's Appeal

Mr. Justice Mercur

delivered the opinion of the court,

The common law gave to the husband an absolute right to his wife’s choses in action, if he reduced them to his possession during coverture. The receipt of them by him was presumed to be a reduction to his possession. That presumption could be - overthrown only by proof of a positive, precise, clear and consistent intention to the contrary existing at the time of receiving them.

While the law thus gave to the husband the right to reduce them to his own possession, it did not impose on him any obligation so to do. He could decline making this personal acquisition. It was a privilege he could waive and receive them for the benefit of, and in trust for, his wife. The property must come under his actual control and possession quasi husband, or the wife took as survivor instead of the personal representative of the husband: 2 Kent’s Com. 138. His receiving it as executor or as trustee is not a sufficient reduction of it to his possession to prevent its surviving to his wife: Baker v. Hall, 12 Vesey 497; Wall v. Tomlinson, 16 Id. 413.

This distinction has been repeatedly affirmed in this state. Conversion is not reduction to possession but only evidence of it. Conversion may therefore be explained by other evidence negativing the intention of its having been reduced to possession in such a manner as to transfer title to the husband: Hess’ Appeal, 1 Watts 255 ; Hinds’ Estate, 5 Whart. 138; Timbers v. Katz, 6 W. & S. 290; Gray’s Estate, 1 Barr 327 ; Woelper’s Appeal, 2 Id. 71; Gochenaur’s Estate, 11 Harris 460.

■ Declarations made by the husband at the time of receiving the wife’s money or choses in action, or afterwards, clearly evincive of the intent at the moment of reduction to possession, are sufficient to repel the presumption of personal acquisition by him, and establish the relation of trustee for the wife: Johnston v. Johnston’s Executors, 7 Casey 450; Gicker’s Administrators v. Martin, 14 Wright 138.

Noav, by the evidence of the husband himself the intent with which he received can be more satisfactorily established.

In this case the auditor found, that at the time of the marriage of the appellant, her guardian, Kirby, had in his hands upwards of $1000 belonging to her, from her father’s estate ; that her husband received this money from her guardian in several payments; that the appellant did not want her husband to have this money without a note, and refused to join in a release to her guardian unless he would give her one; that she constantly importuned him to fulfil his promise; but that he “put her off,” until, becoming alarmed by his having “bailed some persons,” she renewed her entreaties and he gave her the note, some thirteen years after he obtained the money.

The auditor omits to find the fact specifically whether the evidence does or does not show clearly, distinctively and positively, that Moyer received the money under an agreement made at the time, negativing the presumption that he received it as his own property. Inasmuch, however, as the note was not given until so many years thereafter, and Moyer had received and used the money, he infers the evidence is insufficient to rehut the presumption that Moyer intended to assert an absolute title to it.' Looking then at the evidence which the auditor returned with his report, we discover this uncontradicted testimony in regard to Moyer’s agreement under which he received the money. He testifies “ my wife did not want to let me have the money, without a note; I told her I would give her a note, but I put her off; my wife gave Kirby a release. Before she released, she said she would not do it, without I gave her a note, and I promised to do so. Kirby gave mo the money, $800, at his house.” ' On being recalled, he testified further, “while we were going over to the justice’s to get the money and release for it, my wife demanded a note, and I promised to give it to her; this was about 1837, and then I got the money.” He also testified, that he got $200 from Kirbv the spring after he got the $800.

Thus it appears, by the uncontradicted evidence of the husband, that he received this money not under or by virtue of his marital rights, but under his clear, distinct and positive promise to give her his note for it. It was a promise which he made immediately preceding his obtaining the first and principal part of the money. It was the agreement under which he received the whole of the money. It is true, he was not obliged to accept the money on those terms, but he consented to do so. He thus assumed a trust, by which in equity the money remained the property of his wife, although it passed into his actual possession. There is no act or declaration of either Moyer or his wife calculated to weaken this conclusion, save his delay in giving the note. We think that circumstance alone, wholly insufficient to overthrow the other evidence. The mutual confidence, existing between them, undoubtedly delayed giving the note. The facts found by the auditor, do not justify the legal inferences he drew therefrom, and the learned judge erred in confirming his report.

The receipts and release, given in evidence by the appellees, show the last money Moyer received was on the 24th of March 1837; he should therefore be chargeable with the $1000, and interest thereon from that date. ■ The assignment is sustained; therefore,

Decree reversed, and record remanded to the court below, for distribution, to be made conformably to this opinion, and it is ordered that the costs of this appeal be paid by the appellees.