Opinion of the Court.

dleton loaned the money to himself and his partner jointly. He could not become a sole debtor or a joint debtor to his wife without an express promise.'

This doctrine prevails in the other States and in England. Monroe v. May, 9 Kansas, 466; Logan v. Hill, 19 Iowa, 491; Jacobs v. Hesler, 113 Mass. 157; Caton v. Rideout, 1 McN. & G. 597; Muller v. Bayley, 21 Grattan, 529; Hardy v. Van Harlingen, 7 Ohio St. 209.

The circumstances of this case show that Mr. Stickney used the money of his wife as husband, and not as trustee. Consequently he, in his lifetime, was not responsible to her for it, nor is his estate since his decease.

III. Since the enabling statutes, the wife is sui juris as to her separate property, and may sue in her own name any one who interferes with it, even her husband. She may loan her separate money to her husband and enforce payment as against a stranger. Emerson v. Clayton, 32 Illinois, 493; Monroe v. May, ubi supra; Drury v. Briscoe, 42 Maryland,

151.

IV. The disability of a married woman being removed, the statute of limitations so far as her separate property is concerned, applies to her as well as to any other person. Castner v. Walrod, 83 Illinois, 171; Wilson v. Wilson, 36 California, 450; S. C. 95 Am. Dec. 194.

Mr. John Selden for appellee.

MR. JUSTICE FIELD, after stating the case as above reported, delivered the opinion of the court.

The exceptions to the auditor's report, calling for consideration, are founded upon two grounds: one, the supposed incompetency of the complainant to testify as to directions given to her husband to invest moneys of her separate estate for her benefit and in her name; and the other, the supposed conclusiveness of the presumption that moneys belonging to the separate estate of the wife, when she allows her husband to use them, become gifts to him.

Opinion of the Court.

The general rule of the common law is, that neither husband nor wife is admissible as a witness for or against each other in any case, civil or criminal. This exclusion, as Greenleaf says, is founded partly upon the identity of their legal rights and interests, and partly on principles of public policy, that the confidence existing between them shall be sacredly protected and cherished to the utmost extent, as being essential to the happiness of social life. But this doctrine has been modified in several States, in many particulars, by direct legislation upon the subject, such as that neither husband nor wife shall be compellable to disclose any communication made to him or her during the marriage, as in New York. A voluntary statement is receivable under such a statute. Southwick v. Southwick, 2 Sweeny (N. Y.) 234. In some States the statutes include only private conversations in the privilege, but not such as take place in the presence of others. Fay v. Guynon, 131 Mass. 31. The Revised Statutes of the United States relating to the District of Columbia, on the subject of witnesses, provide as follows:

"SEC. 876. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or other proceeding in any court of justice in the District, or before any person having by law or by consent of parties, authority to hear, receive and examine evidence within the District, the parties thereto, and the persons in whose behalf any such action or proceeding may be brought or defended, and all persons interested in the same, shall, except as provided in the following section, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of any of the parties to the action or other proceeding.

"SEC. 877. Nothing in the preceding section shall render any person who is charged with an offence in any criminal proceeding competent or compellable to give evidence for or against himself; Or render any person compellable to answer any question tending to criminate himself; Or render a husband competent or compellable to give evidence for or against his wife, or a wife competent or compellable to give evidence

Opinion of the Court.

for or against her husband, in any criminal proceeding or in any proceeding instituted in consequence of adultery; Nor shall a husband be compellable to disclose any communication made to him by his wife during the marriage, nor shall a wife be compellable to disclose any communication made to her by her husband during the marriage."

These provisions dispose of the objection of counsel. Mrs. Stickney was at liberty, though not compellable, to state the directions given by her to her husband respecting the investment of her money. And without this qualification of the rule of the common law we are inclined to think that the changed law respecting her separate property, created by the Married Woman's Act of April 10, 1869, c. 23, 16 Stat. 45, would require for its successful enforcement some modification of the common law rule as to a husband or wife being a witness where a controversy arises between them relating to the disposition of her separate personal property. That property no longer, as at common law, vests in her husband by the marriage. That act provides as follows:

"SEC. 1. That, in the District of Columbia, the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were feme sole, and shall not be subject to the disposal of her husband, nor be liable for his debts; but such married woman may convey, devise and bequeath the same, or any interest therein, in the same manner and with like effect as if she were unmarried.

"SEC. 2. That any married woman may contract, and sue and be sued, in her own name, in all matters having relation to her sole and separate property in the same manner as if she were unmarried; but neither her husband nor his property shall be bound by any such contract nor liable for any recovery against her in any such suit, but judgment may be enforced by execution against her sole and separate estate in the same manner as if she were sole."

So far as her separate property is concerned, a married woman thus becomes as absolute owner as though she were

Opinion of the Court.

unmarried, and it would seem should also have the same protection, through her own evidence, as a feme sole. We do not think, therefore, that the exception of the defendants is well taken. With the testimony of Mrs. Stickney, corroborated as it is in many particulars by statements of others and by the books of her husband and those of the executors of the estate of Amos Kendall, there can be no serious contention as to the correctness of the conclusions reached by the auditor as to matters of fact involved, upon the evidence presented to him.

This view of the admissibility of Mrs. Stickney's testimony disposes also of the supposed presumption, arising from her allowing her husband to use the moneys of her separate estate, that she intended them as a gift to him. Any presumption of that kind, if it would otherwise arise in the case, was entirely rebutted by her repeated and express directions to invest the moneys for her benefit in her own name. But we are of opinion that, in the absence of her testimony, there would be no presumption, since the passage of the Married Woman's Act, that she intended to give to her husband the moneys she placed in his hands, any more than a gift would be inferred from a third person who in like manner deposited money with him. If there be no proof of indebtedness to the party receiving the moneys, the presumption would naturally be that they were placed with him to be held subject to the order of the other party, or to be invested for the latter's benefit. We think that whenever a husband acquires possession of the separate property of his wife, whether with or without her consent, he must be deemed to hold it in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of it to him. In Grabill v. Moyer, 45 Penn. St. 530, 533, the Supreme Court of Pennsylvania, in speaking of the effect of an act of that State, passed on the 11th of April, 1848, containing provisions similar to the Married Woman's Act of the District of Columbia, said: "When the act of assembly declares, as it does, that all property, real, personal and mixed, which shall accrue to any married woman during coverture, by will, descent, deed of conveyance, or

Opinion of the Court.

otherwise, shall be owned, used, and enjoyed by such married woman, as her own separate property; when the leading purpose of the act is to protect the wife's estate by excluding the husband, it is impossible for us to declare that the mere possession of it by the husband is proof that the title has passed from the wife to him. After it has been shown, as it was in this case, that the property accrued to the wife by descent from her father's and brother's estates, the presumption necessarily is that it continued hers. In such a case it lies upon one who asserts it to be the property of the husband to prove a transmission of the title, either by gift or contract for value, for the law does not transmit it without the act of the parties. If mere possession were sufficient evidence of a gift, the act of 1848 would be useless to the wife. Nothing is more easy than for the husband to obtain possession, even against the consent of the wife. And where he obtains it with her consent, it can be at most but slight evidence of a gift."

The case of Bergey's Appeal, 60 Penn. St. 408, cited by the auditor in his report, is in point here. Bergey received money belonging to his wife, being her patrimonial portion, in her presence, and both united in a receipt for it. Not a word was spoken by the wife when her husband took up the money to count it, and put it in his pocket; nor was a word ever heard afterwards to the effect that the wife had made a gift of it. The husband appropriated it to the purchase of a farm, and the Supreme Court of the State held that no inference could arise of a gift from the transaction as detailed, observing that "she was not bound to attempt a rescue of it from him, or proclaim that it was not a gift. She might rest on the idea that his receipt, in her presence, was with the intent to take care of it for her. In Johnston v. Johnston's Administrator, 31 Penn. St. 450, this court said, in a case of the nature of this, as the law made it (the money) hers, it presumes it to have been received for her by her husband.' That case contrasts the presumptions arising from the receipt. of money by husbands, prior and subsequent to the act of 11th of April, 1848. In the first period, the presumption is that he has received it under and by virtue of his marital