
    Bell V. Little vs. Martin Willets.
    A gift of money from a husband to his wife, which she immediately returns to him with instructions to use it as her agent, cannot be sustained, as against the husband’s creditors.
    Nor can the wife maintain title to personal property, upon the allegation that it was purchased by her husband as her agent, with the proceeds or profits of money given to her by him.
    The statutes of this state do not enlarge the common law rights of the wife, in this particular. The acts of 1848 and 1849 enable a-mamed woman to take by gift &c. from any person other them her Imsiand, and the acts of 1860 and 1862 declare the nature or qualities of the estate which married women may acquire, and enable them to sue, &c.; but these acts do not, in terms or by implication, designate the husband as a person from whom the wife may take, &c.
    No gift inter mvos, will confer title unless there be a positive change of possession, and the donor is in no position to repossess himself of the subject matter of the gift, or to recall the same.
    APPEAL from a judgpafent entered-ujioh the report of a referee
    The action was brought against the defendant, as under-sheriff of Suffolk county, to recover the possession of certain articles of personal property levied on by him under an execution against the property of the plaintiff’s husband, Robert H. Little.
    
      The referee found the following facts: 1. That the plaintiff is, and for more than seventeen years has been, the wife of Eobert H. Little. 2. That for fifteen years previous to and including the year 1865, her said husband was accustomed to give her, each year, a holiday gift, in money—in some years $500, in other years $300. 3. That excepting portions of this money used in paying for articles purchased for herself, she delivered the same to her husband, with directions that he should invest the same for her, and as her agent. 4. That he did invest and reinvest the same, together with the profits thereof, in various gold,' petroleum and oil stocks. Mrs. Little was kept advised of these transactions, made occasional memoranda of some of them, but kept no accurate account of the whole. 5. That in the spring of 1866, Mrs. Little became the owner of a farm at Huntington, Suffolk county, on which she and her husband and family then went to reside, and where they have since resided. 6. That in 1866, Mrs. Little purchased and placed on the farm, through the agency of her husband, the following articles, mentioned in the complaint, viz: the skeleton wagon, the two-seat wagon, the calash-top wagon, the bay horse, the cow, grindstone and flat-boat. Her husband, in purchasing these articles, professed to act in behalf of his wife, and paid for them out of the funds above mentioned. The calf mentioned in the complaint was raised from the cow mentioned. The hay and stalks mentioned were grown upon the farm. 7. That in 1867, Daniels, Crozier & Coe obtained a judgment in the Supreme Court, against Eobert H. Little, on which an execution was issued; and the defendant, under-sheriff of Suffolk county, by virtue thereof, levied on the articles mentioned in the complaint. 8. That the articles were immediately replevied by the plaintiff. 9. That the value of the articles, other than the hay and stalks, is $460, and of the hay and stalks, $40.
    And as conclusions of law, the referee found, 1. That by the common law, Robert H. Little had no power to confer upon his wife, the plaintiff, a title to this money by a delivery thereof into her possession in the form of a gift, and that she had no legal capacity to acquire a title to such money, in that manner. 2. That the statutes of this state have not altered the law, in this respect; the statutes of 1848 and 1849 expressly disclaiming this mode of creating a sole and separate estate in the wife; and the statutes of 1860 and 1862 not enlarging the means by which such estate may be created, but declaring the qualities of such estate when acquired in accordance with existing laws. 3. That the money delivered by Robert H. Little to his wife, the plaintiff, remaining by force of law his property, the proceeds thereof, and the articles .purchased therewith, with the calf raised from the cow thus purchased, were all his property; and that the facts raised no equity in behalf of the plaintiff herein which can countervail the claims of an execution creditor of the owner. 4. That the defendant had authority to take those articles, and that he therefore should have judgment for the return thereof; or, in default of a return, for the sum of $460, with interest from the date of the replevy, to wit, from the 24th of January, 1868. 5. That the plaintiff was the owner of the hay and stalks mentioned in the complaint, and that she have judgment for six cents damages for the taking and detention thereof.
    Judgment being entered accordingly, the plaintiff appealed.
    
      Henry C. Platt and C. C. Egan, for the appellant.
    
      Thos. Young, for the respondent.
   By the Court, Tappen, J.

The plaintiff* is a married woman, and for a period of fifteen years, previous to, and including the year 1865, her husband had given her holiday gifts of money, amounting in the aggregate to about $15,000. These moneys she instructed him to use, as her agent. He did so use and invest them in various stock transactions, and kept a separate account thereof. On a judgment recovered against the husband, the defendant, under-sheriff, made a levy upon a wagon, and other personal property, in June, 1867. This personal property was upon a farm of the plaintiff’s on which the plaintiff■ and her husband resided. The plaintiff brought this action of replevin, and claims that the property was purchased by her husband as her agent, with moneys acquired as above stated, or with the increase or profits of such moneys; that such property was in her possession and use upon the farm, and that her husband was solvent at the time of the purchase of the property. The defense is principally based upon the legal proposition that the wife could acquire no property by gift from her husband; and the referee before whom the case was tried so found, and reported in favor of the defendant. I do not, however, upon the facts of the case, assume that there was any gift—that is, a gift of any property of which the wife retained possession or control, or which was placed in such condition as to render it capable of being distinguished from other property of the donor.

I am not prepared to hold that a gift like the one in question confers any title upon the wife, or would confer any title upon any other person as donee, against third parties. A different conclusion might be reached if it were a return of the wife’s money to her; or if she retained some control of the property which is the subject of the gift; or if it were property capable of being distinguished; but to hold that a wife may immediately return to her husband money that he had given her, with instructions to use it as her agent, and that she may maintain title to personal property upon the allegation that it was purchased by her husband as her agent with the proceeds or profits of those gifts, is to leave the entire business community without suitable protection.

It does not appear but that in this case the “ agent,” the husband, has all that his wife has entrusted to him, and can fully account to her therefor. •

In respect to the separate account kept between them, the only account produced upon the trial was one made by the husband’s book-keeper, and commencing in June, 1865.

The wife was a witness upon the trial; the husband was not called.

I have not thought it necessary to consider whether the creditor upon whose judgment and execution the levy was made was a prior or subsequent creditor; nor does the question of the right of the wife, in equity, to have an account from the husband, need to be considered here. If her husband were simply her debtor, then his gifts did not constitute a separate estate, in the sense which is necessary to maintain this action. The appellant cites Dygert v. Remerschnider, (82 N. Y. Rep. 629,) in which the right of the wife was upheld; but in that case the wife had paid full value to the husband’s creditors. The appellant also cites Wallingford v. Allen, (10 Peters, 594,) in which Justice "Wayne says: “Where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property, for her use, equity will sustain it,” &e. I hold the latter feature to be wanting in this case.

Eo gift inter vivos is sustained as conferring title unless the change of possession be positive, and the donor in no condition to repossess himself of the subject matter of the gift, or to recall the same. The legislation in this State, referred to upon the argument, does not enlarge the plaintiff’s rights or remedy.

The statutes of 1848 and 1849 enable a married woman to take by gift &c. from any person other than her husband, and the subsequent acts of 1860 and 1862 declare •the nature or qualities of the estate which married women may acquire, and enable them .to sue, &c. These acts do not in terms, or by implication, designate the husband as a person from whom the wife may take, &c.

[Kings General Teem,

February 8, 1869.

The judgment should be affirmed, with costs.

J. F. Barnard, Gilbert and Tap-pen, Justices.]  