Harter v. Holman

152 Wis. 463 | Wis. | 1913

WiNSLOw, C. J.

We find but one question in this case serious enough to require treatment, and that question may be stated as follows: When a married woman delivers to her husband money belonging to her separate estate with no agreement of any kind as to the repayment thereof, is there a legal presumption that it was intended as a gift? By the great weight of authority in the states where, as in Wisconsin, married women have been given full right to receive, hold, and deal with their separate estate as if single, this question is answered in the negative. Bergey’s Appeal, 60 Pa. St. 408; Boyd v. De La Montagnie, 73 N. Y. 498; Adoue v. Spencer, 62 N. J. Eq. 782, 49 Atl. 10. See, also, the authorities cited in the note to the last named case as reported in 56 L. R. A. 817, on page 820.

In the case of Stickney v. Stickney, 131 U. S. 227, 9 Sup. Ct. 677, the rule is well stated by the supreme court of the United States as follows:

“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.”

The trial court followed this rule, and hence the judgment must be affirmed.

By the Court. — Judgment affirmed.