| Ark. | May 20, 1912
(after stating the facts). It is contended by appellant that the lots in controversy were not a gift to his wife, but were held in trust for him. *
In Harbour v. Harbour, 103 Ark. 273" date_filed="1912-04-08" court="Ark." case_name="Harbour v. Harbour">103 Ark. 273, the court said: “It has been frequently held that where the husband purchased and paid for lands, taking the deed therefor in the name of his wife, the presumption is that his money, thus used, was intended as a gift to her, and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased or to hold the same in trust for him. His conduct is referable to his affection for her and his duty to protect her against want, and it will be presumed to be a gift, and, so far as he is concerned, becomes absolutely her property. Wood v. Wood, 100 Ark. 370" date_filed="1911-10-23" court="Ark." case_name="Wood v. Wood">100 Ark. 370; Womack v. Womack, 73 Ark. 281" date_filed="1904-12-10" court="Ark." case_name="Womack v. Womack">73 Ark. 281; O’Hair v. O’Hair, 76 Ark. 389" date_filed="1905-07-29" court="Ark." case_name="O'Hair v. O'Hair">76 Ark. 389.”
This presumption is not conclusive, however, and may be rebutted by evidence of facts and declarations antecedent to and contemporaneous with the conveyance, showing that the intention of the husband was to have his wife hold the land in trust for him and that he did not intend to make her a gift thereof. But the evidence necessary to overcome the presumption of an advancement and prove a resulting trust must not only be distinct and credible, but must preponderate, as said in Robinson v. Robinson, 45 Ark. 484; Chambers v. Michael, 71 Ark. 373" date_filed="1903-05-09" court="Ark." case_name="Chambers v. Michael">71 Ark. 373.
In Bogy v. Roberts, 48 Ark. 18, the court, holding land purchased by the father in the name of his children an advancement, said: “Where the proof does not make it clear and manifest that a trust was intended by the purchase, equity follows the law and leaves the estate with the child.”
In this case it is questionable from appellant’s own testimony whether he had any intention at the time of the conveyance to his wife that she should hold the lands as trustee for him or his benefit. His statement does not exclude, and rather warrants, the inference that the conveyance was made to her for her and the children’s benefit, that she might dispose of it in case of his death without any restraint from the law relating to the homestead rights of the minor children.
The wife’s testimony, now to the same effect as his own, since she returned and is living with him, is entitled to little credit as against her written declaration of an altogether different condition and denial of any interest whatever of appellant in the lands when she made the sale and conveyance thereof and received the money in payment therefor.
Upon the whole case, the proof does not make it clear and manifest that a trust for his benefit was intended, nor overcome the presumption of an advancement by preponderance of distinct and credible evidence. It tends rather to show the intention to create a trust in the lands in favor of his children, which can only be manifested by a writing, and parol evidence will not be heard to graft an express trust upon a deed absolute in its terms, as was the deed here. Kirby’s Digest, § 3666; Spradling v. Spradling, 101 Ark. 451" date_filed="1911-11-20" court="Ark." case_name="Spradling v. Spradling">101 Ark. 451; Harbour v. Harbour, supra.
Appellant had these lands conveyed to his wife that she might dispose of them for her own and his children’s benefit, in case of his death, without hindrance; and, notwithstanding she anticipated the time and disposed of the lands sooner than he intended, she received about the value thereof, and' the money was used for her own and the children’s benefit, and, under the circumstances, he has no just cause of complaint against appellee, the purchaser thereof. .
The decree of the chancellor was right, and is affirmed.