
    Sessions v. Trevitt.
    1. Where a husband purchased lands with money received by him from his wife, in pursuance of an agreement made between them before marriage that he would invest the same for her benefit, and took the title thereto in his own name, a trust in such lands resulted in favor of the wife, although the money was thus received before the taking effect of the act of April 3,1861, ‘‘concerning the rights and liabilities of married women.”
    3. Husband and wife are competent to testify concerning any communication made by one to the other, or an act done by one in the presence of the other, during coverture, if the communication was made, or the act done, in the known presence, or hearing, of a third person competent to be a witness, although such third person is not living at the time of the trial.
    
      In June, 1876, Francis C. Sessions, Orange Johnson and Joseph A. Jeffrey recovered a judgment against William Trevitt, on which judgment an execution was issued, and levied on certain lands situate in Williams county, Ohio, to which Trevitt then had the legal title. On the t§nth day of January, 1877, Trevitt made a general assignment of all his property, real and personal, for the benefit of his creditors, to Henry O. Taylor, who, on the twenty-third day of May, 1877, filed in the Court of Common Pleas of Franklin county, his petition for the sale of the real estate embraced in the assignment, including the Williams county lands.
    To this petition Mrs. Lucinda B. Trevitt, one of the defendants, filed her answer and cross petition, the object and prayer of which was to obtain a judgment declaring a trust in her favor in the Williams county lands, and directing that a conveyance thereof should be made to her. Her title to such relief is stated in the cross petition, as follows:
    “On'the 20th day of November, 1839, she was the owner of the sum of $1,700 in money and two notes dated June 1, 1839, each for $666.66 and interest from date, due respectively Jun'e 1st, 1840 and 1841, and afterwards and on the same day married the defendant, William Trevitt, and ever since has been, and now -is, his wife; that she placed said money and notes in the hands of her said husband upon the express agreement and trust that he would and should invest the same for her benefit; and afterwards, and on or or about the month of June, in the year 1840, in pursuance of said agreeañent and trust, he invested said money and the proceeds of said notes in the purchase, improvement and development of the lands and lots described in the petition, and other adjoining lands and lots, but took the title to himself; and afterwards, and on June 29, 1861, he acknowledged and declared said agreement and trust to this defendant in writing.”
    Francis C. Sessions, as executor of the last will of Orange Johnson, deceased, Francis O. Sessions, and Joseph A. Jeffrey, who were also defendants in the action, filed a general demurrer to Mrs. Trevitt’s answer and cross-petition, which was sustained as to the part which denied the jurisdiction of the court, and overruled as to the cause of action stated in the cross petition.
    They then filed answers denying the allegations of the cross petition, and insisting upon their right to have the ’Williams county lands sold, and the proceeds applied to the satisfaction of their judgment.
    The trial in the court of common pleas resulted in a judgment in favor of Mrs. Trevitt. On appeal to the district court the demurrer to the cross-petition was refiled, and was overruled.
    The cause was then submited to the court on the cross petition, answers, replies and .testimony; on consideration whereof the court found, “ Upon the issues so joined, in favor of the said Lucinda B. Trevitt, and against the other parties, and that the equity of the case is with her, and that the facts stated and allegations contained in her said cross-petition are true, and that the agreement therein alleged to have been made was made before the intermarriage between her and the said William Trevitt, and that said agreement was, after their intermarriage, reaffirmed and agreed to by them, and that the trust alleged in said cross petition was created, and that the said William Trevitt received the money and. promisory notes described in said cross-petition of Mrs. Trevitt, in pursuance of said agreement and trust, and not otherwise ; and that the said William Trevitt, pursuant to said agreement and trust, purchased and improved with said money, and the proceeds of said promisory notes,” the Williams county lands described in the petition — that he took the legal title in his own name, but in trust for Mrs. Trevitt — that she was entitled to a conveyance thereof, in fee simple, and to be quieted in her ownership against every claim and lien' alleged by the other parties to the action. The court rendered judgment, in accordance with this finding, in favor of Mrs. Trevitt, and the plaintiffs in error now ask leave to file a petition in error to reverse that judgment.
    
      Lorenzo English and <7. Wm. Baldwin, for the motion :
    ' I. The facts stated in the answer and cross-petition to have occurred at or soon after the marriage of William and Lucinda Trevitt did not create an implied, constructive or express trust in the husband for the wife.
    This marriage occurred a long time prior to the passage of any statute in Ohio changing the common-law rule, which is that where a lawful marriage has constituted the relation of husband and wife, the personal property of the wife becomes absolutely that of the husband, and her possession is his possession. Bishop on the Law of Married Women, 36, 37.
    When, therefore, the marriage took place between Mr. and Mi’S. Trevitt, the $1,700 in money became her husband’s, without any restrictions whatever; and the mere fact of her placing the same in his hands upon any agreement or trust that he should invest the same for her benefit could not and did not restrict that possession and ownership. Such agreement was without consideration, and was void.
    The case is far different from those where the money descends or is given to the wife after coverture.
    Aside from statutes changing the rule, a wife did not, and could not, have a “separate estate ” in moneys and chattels in. her possession at marriage. “ That expression ” (separate ■estate), says Loweee, J, in 12 Harris (Pa.) 431, always refers to an equitable estate held by somebody in trust for a married woman; and see Gliddin v. Taylor, 16 Ohio St. 517; 20 Ohio St. 62, 67; Ins. Co. v. Bay, 24 Comstock, 27; 1 Bishop, §801.
    As far, then, as relates to the $1,700 money invested in these lands, no trust arises by implication, constructive or express agreement (or ex malefició). Por an express trust this amount was no part of the consideration, and for implied or resulting trust this amount was not of the moneys or property mf the wife; and for a constructive or ex maleficio trust there was no fraud or tortious violation of rights connected with it. Miller v. Blackburn, 14 Ind. 62; Magee v. Toland, 8 Porter (Ala.) 36; McDaniel v. Whitman, 16 Ala. 343 ; Chambers v. Perry, 17 Ala. 726; Westervelt v. Gregg, 2 Kernan (N. Y.) 202; Buckanan v. Lee, 69 Ind. 117, 120; Waldron v. Sanders (Sup. Ct, of Ind.), Cincinnati Law Bulletin, Sept. 4, 1882 ; Roy v. McPherson, 11 Neb. 197; Ramsdall v. Craighill, 9 Ohio, 197; Hockett v. Bailey, 86 Ill. 74; Patton v. Gates, 67 Ill. 164; Wilson v. Loomis, 55 Ill. 352; Beson v. Eveland, 26 N. J. Eq. 468; 51 Mo. 443; Hatch v. Gray, 21 Iowa, 299.
    The promissory notes, by the marriage, became Mr. Trevitt’s, so that whether delivered to him or not, he had. the right to reduce them to his possession without his wife’s consent; and if he promised to invest the proceeds in any particular thing for her benefit, such promise was without consideration (which is always necessary to a trust), and if he did not keep his promise, but invested in his own name, he would have violated no legal or equitable right of his wife.
    These notes were not her separate estate either in law or equity, and when he collected the proceeds of the notes they were his absolutely. Nolen's Appeal, 11 Harris (Pa.) 37.
    The case of Newton v. Taylor, 32 Ohio St., does fiot apply, as claimed by Mrs. Trevitt’s counsel. That case turned upon the finding of the fact that the husband practiced fraud and deceit. See Brown on St. of Frauds, §§ 94, 95, 96 ;' Tiffany & Bullard on Trusts, 717.
    If, at the time of purchase of said lands, the moneys and notes were Mr. Trevitt’s, and there was no implied, resulting orconst ructive trust in Mrs. Trevitt’s favor then raised by the purchase, the alleged subsequent declaration of trust was nothing but a gift or voluntary settlement, and this court cannot now aid her. Hill on Trusts, 83, 84; Ellison v. Ellison, 6 Vesey, 149.
    II. As to the admissibility of evidence, we insist that the competency to be a witness of the third person referred to in section 5241, Rev. Stats., paragraph 3, must exist at the time of the trial, because of the intention of the legislature to provide a witness to disclosures made by husband and wife who could testify to the same upon a legal trial touching the matters therein involved, and to protect still the parties themselves, as will as others against whom they may have a common interest by reason of their marital acts, from misrepresentation as to the truth of the same.
    
      The “competency” or the “witness” would be of small .value if limited to the date of the occurrence or disclosure.
    Harrison, Olds & Marsh, George B. OTcey, and Taylor & Taylor, contra:
    T. It was competent for Dr. Trevitt to waive, or to surrender to Mrs. Trevitt, his marital rights to the money and promisory notes described in her cross-petition, and to agree with her to receive, and to actually receive the same, as her agent or trustee, for the purpose of investing such money and notes in real estate for her benefit.
    II. Dr. Trevitt having waived and surrendered his marital rights to the money and notes, he received the same from her, not under or by virtue of his marital rights, but as her agent or trustee, under his positive promise to invest the same in real estate for her benefit. He thus assumed a trust by which, in equity, the money and notes remained the property of Mrs. Trevitt, although they passed into his actual possession ; and when he invested the same in real estate according to his promise, the trust was fastened upon the land.
    These propositions -are abundantly sustained by authority. Huston v. Cone, 24 Ohio St. 11; Huber v. Huber, 10 Ohio, 371; Wood v. Warden, 20 Ohio, 518; Moyer’s Appeal, 77 Pa. St. 486 ; Albee v. Cole, 39 Vt. 319; Bent v. Bent, 44 Vt. 555; Child v. Pearl, 43 Vt. 224; 5 Wharton, 137; 4 Rawle, 478; 1 Watts, 255; 6 W. & S. 290; 1 Barr, 329; 2 Barr, 71; 37 N. H. 134; 46 N. H. 130; 47 N. H. 407; 50 N. H. 479; 8 Barb. 190; Newton v. Taylor, 32 Ohio St. 399.
    Dr. Trevitt having -expressly waived and surrendered his marital rights as to the money and promissory notes, they were the separate property -of Mrs. Tuevitt; and as to it, she was in the position of a feme sole.
    . By the term separate -estate, is meant that property which ■ belongs to a .married woman, and over ¡which her husband has ,no right in.equity. 2 Bouvier’s Inst- 272. It always refers .to an equitable -estate held by somebody in trust for a married woman. Per Lowry, J., in 2 Harris, 431.
    
      Not only under ante nuptial agreements will she be able to hold separate property, but also under a contract during the matrimonial connection, made between him and her alone, and sucli contract will be enforced as if made with a stranger; whether the separate estate be derived from the husband himself or from a stranger, he will in either case be treated as a trustee. 2 Bou. Inst. 271, and cases there cited.
    The Ohio cases before cited recognize the above proposition and the doctrine thus stated by Bouvier.
    Where a husband buys land with his wife’s separate property, or with the savings of her separate estate, a trust results to the wife. And the right of the wife to her separate property as against the husband, his heirs and creditors, is universally recognized and enforced. Hill on Trustees, 148; Methodist Church v. Jaques, 1 Johns. Ch. 450; Barron v. Barron, 21 Vt. 376; Brooks v. Dent, 1 John. (Md.) Ch. 523; Dickinson v. Codwise, 1 Sandf. Ch. 214; Darkin v. Darkin, 23 L. J. Ch. 890; Pritchard v. Wallace, 4 Sneed, 405; Resor v. Resor, 9 Ind. 317; Miller v. Blackburn, 14 Ind. 62; Lathrop v. Gilbert, 2 Stock. 311; Fillman v. Divers, 31 Pa. St. 429; Kline's Appeal, 39 Pa. St. 463; Robinson v. Robinson, 44 Ala. 227; Tifford v. Torry, 53 Ala. 120; Leach v. Leach, 10 Ves. 517; McGovern v. Knox, 21 Ohio St. 517; House v. Harden, 52 Miss. 860; Tracey v. Kelley, 52 Ind. 535; Savage v. O'Neil, 44 N. Y. 298; Tennison v. Tennison, 46 Mo. 77. See, also, Woodford v. Stephens, 51 Mo. 113; Thomas v. Chicago, 55 Ill. 403; Fillman v. Divers, 31 Penn. St. 429 ; Pritchard v. Wallace, 1 Sneed (Tenn.) 105; Hacker v. Gentry, 3 Met. (Ky.) 163.
    As to admissibility of evidence, see Greenleaf on Ev. § 254; Schouler on H. & W. 85; White v. Parry, 14 W. Va. 80; Duval v. Davey, 32 Ohio St. 601; Bean v. Green, 33 Ohio St. 447; Sieving v. Seidelmeyer, 4 Bull. 213.
    It is claimed that the competency of the third person whose presence is necessary to relieve the communication of its confidential character, relates to the time of trial. But it is clear, we submit, that such competency relates only to jthé time of the communication. Based upon reasons of public policy, the law prevents the betrayal, by either husband or wife, of a trust or confidence reposed by one in the other m privacy. And the confidential nature of the communication is conclusively presumed when it is made in the absence of a competent witness. The confidential nature of the communication is a matter of the intention of the parties, to be ascertained from the circumstances. They may remove the privilege by speaking in public.
    
      “ The construction sought to be placed upon the law by the plaintiffs in error would remove the shield of privilege if an infant were present who at the time of the trial was a competent witness. Such, evidently, is not its intent and spirit.”
   Upson, J.

The first ground upon which the plaintiffs rely, in support of their motion, is that the facts set forth in the cross-petition of Mrs. Trevitt are not sufficient in law to maintain her action thereon against them, and that the district court therefore erred in overruling their demurrer. They insist that by virtue of the marriage the money which had previously belonged to the wife, and the proceeds of the promissory notes owned by her, became the absolnte property of the husband, and that any agreement made by him with her to invest the same for her benefit, was without consideration and void; and that the facts stated in the cross-petition created no implied, constructive or express trust in favor of the wife.

It is true that in 1839, when Trevitt received the money, and promissory notes from his wife, the rules of the common law with respect to the rights of a husband to the personal property and choses in action of his wife had not been materially changed in this state, and we do not question the authority of most of the cases cited by plaintiffs’ counsel; but the right given by the law was one which the husband could waive or surrender, even by agreement made after marriage.

In this case it is found by the district court that by agreement between the parties- before marriage, reaffirmed and agreed to after marriage, the money was to be invested for the benefit of the wife, and that the money and promissory notes were received and the real estate purchased in pursuance of the agreement.

"We are of opinion that under these circumstances the money, and the proceeds of the promissory notes, did not become the property of the husband, but-did become the separate property of the wife, and that when the real estate was purchased and the title conveyed to him he held it in trust for his wife, and that this trust is valid not only against the husband but also against his creditors, no facts having been found by the court which estop her from asserting her title as against them.

The next question presented for oiir consideration relates to the construction of section 5211 of the Revised Statutes. It is claimed that the district conrt erred in admitting the testimony of the husband and wife concerning conversations with each other during coverture, in the known presence of a third person competent at the time of such conversations to be a witnesss, but who had died before the trial.

In behalf of the plaintiffs it is argued that the presence of a third person competent to be a witness is required because of the intention of the legislature to provide a witness to such disclosures who could testify to the same upon a legal trial touching the matters therein involved, and to protect still the parties themselves, as well as others against whom they may have a common interest by reason of their marital acts, from misrepresentation as to the truth of the same.” It is obvious, however, that this purpose could be quite as well effected by allowing such testimony, if the communications were made in the hearing of a third person, even if his presence were not known to the parties until afterwards.

Communications between husband and wife are not excluded on the ground of their common interest, or for the protection of those against whom they may testify, but because public policy requires that they shall not be allowed to betray the trust and confidence which are essential to the happiness of the married state. 1 Greenleaf Evid. § 254.

The reason for the exclusion ceases when the husband and wife conclusively show, by making the communication in the known presence of a third person competent to be a witness, that it is not of a confidential nature, and that its disclosure can not violate any trust or confidence. We think the testimony was properly admitted.

■ It is claimed that the district court erred in other rulings, in regard to which we deem it only necessary to say that we find no error in those rulings.

Motion overruled.

Okey, J., having been of counsel, did not sit in this case.  