WALKEN, J.
— The decree of the chancellor in this case contains no error of which the appellant can complain. The appellant bought the mortgage which he seeks to foreclose, and used in the purchase the sum of one thousand and forty dollars of money placed in his hands by the wife of the mortgagor. If this money was the money of the mortgagor, it can not be doubted that the mortgage was discharged, pro tanto. McLemore would be deemed a trustee for the mortgagor, for the money of the latter placed in his hands, and would be precluded from a foreclosure, to that extent. He could not be permitted, after the expiration of several years from the appropriation of the money, to say that it was placed in his hands to hold as an indemnity, when he has *269reimbursed himself, by a recovery from another,-for the loss against which the money was designed as an indemnity ; and when it does not appear that either the mortgagor or his wife had ever objected to the appropriation made by him.
2. The views above expressed dispose of all the questions in this case, except the question whether the monej which the mortgagor’s wife placed in the hands of the appellant was the money of the mortgagor. The proof relied upon for the complainant, to show that the money was the separate estate of the mortgagor’s wife, was, that a large portion of the money consisted of bills of a small denomination, and coin in small pieces, such as would likely be received from the sale of small articles in a city market; and that she declared that the money was not her husband’s — that her husband had agreed that she might have all she could make from her garden and her poultry, and that the money handed to the appellant was derived from these sources. These declarations were legitimate evidence, only so far as they qualified and explained the act done; or, in other words, only so far as they came within the doctrine of res gestee. So far as they asserted that the mortgagor’s wife claimed the money as her own, and asserted her separate right to the money, the declarations may be considered. But so far ns they constitute a statement of a contract with her husband, and a narrative of the past circumstances by which she procured the money, they were not admissible evidence ; and, although brought before the court because they were recited in the answers to interrogatories by the plaintiff, which were given in evidence by the defendants, and although it may therefore have been proper for the court to have looked to it as evidence; yet we deem it altogether insufficient to prove the separate estate of the wife in the money.
3. While it is unquestionably the law, that the husband may give to the wife her earnings, and constitute them a separate estate in her, it is also clearly laid down by the law-books, that such an estate could only be created by a clear irrevocable gift to some person as a trustee, or by *270some clear and distinct act of the husband; and that mere declarations of intention on the part of the husband can never constitute such an estate. — 2 Brighton Husband and Wife, 202, 204; McLean v. Longlands, 5 Vesey, 79. The wife’s earnings belong, prima facie, to her husband. Conceding that the money delivered to the appellant was the fruit of her earnings, the law intends, till the contrary is shown, that they are her husband’s property. There is not the slightest evidence, aside from the declarations of the wife, that those earnings had been given up to her by her husband as a separate estate. If there was any other evidence attainable — if there existed other proof of a contract between the husband and wife as to her earnings; or if the wife had a separate estate, or any other source from which she might have derived the fund; or if the husband had for a long time recognized Ms wife’s separate estate in her earnings, there ought to have been proof of those facts. There is nothing in this record from which we are authorized to infer their existence. The wife’s declarations, standing alone and unsupported, are not, in our judgment, sufficient to establish a separate estate in the money, or to show that she was authorized to carry on any business on her own account.
The decree of the court below is affirmed.