dissenting:
The judgment to be entered in this case is dependent upon the effect to be given to the testimony of the plaintiff’s witnesses. The Fritchey Lumber Company had its origin in an investment of $100. The plaintiff’s right to the property in dispute is conditioned upon the ownership of this money. The husband was admittedly insolvent with many unpaid exemption judgments of record against him. The wife testified that she had borrowed this money from her husband. The husband testified that he had no money, that he got the money for her *325by borrowing it from a business friend to whom he gave a due-bill for the amount in his own name and ihat he afterwards paid the debt. On cross-examination he testified as follows: “ Q. Do you remember Mr. Spyker asking you this question, ‘ State whether or not, Mr.-Fritchey, you loaned your wife $100, at any time ’ ? A. I remember about it. Q. Didn’t you answer, ‘ Yes, sir; I did ’ ? A. I did. Q. Then you loaned it to your wife ? A. No, sir; I borrowed the money for her. That is the mistake, I could not loan her the money.”
After the receipt of the money by the wife it was at once handed over to the husband’s brother to use in binding an option for the timber on the James Dean tract of land. The wife gave no obligation for the money and it was repaid to the lender out of the first returns from the $100 investment. The husband could not transact business in his own name and the money was secured by him to be used in a lumbering operation with which he was familiar by experience and in which he wished to continue and about which the wife knew nothing. It was wholly conducted by the husband and his brother without any books being kept of the business or any accounting made to the wife. The original investment was not made from her separate earnings, as it was furnished by the husband, nor, on the credit of her separate estate, as she says that she did not have any, nor, on the faith of her anticipated relations to a business with which she was not to be associated or identified. The trading name was suggested by the husband and did not disclose her connection with it; its use tended rather to delude the creditors of the husband.
An insolvent debtor cannot secrete from the grasp of creditors the proceeds of an investment of his own money by so palpable a device. The law looks behind the form to seize the substance, and the repayment of the $100 to the hnsband’s business friend did not change the character. To my mind the $100, when it was invested in the name of the wife, was the money of the husband and it would have been liable to attachment for his debts while in her hands.
However well intentioned the project may have been, and we . do not question this, the law stamps it as unlawful, and as ' such it should have been declared by the court trying thé' feigned issue in answer to the defendant’s third request for instructions.
*326It is a familiar and well settled principle that in such a con-, test concerning the ownership of property which the wife claims to have purchased during coverture that she must “ prove distinctly that she paid for it with funds which were not furnished by her husband, ” and this rule is not in any degree affected by the Act of June 3,1887, P. L. 332, or by the Act of Juue 8,1893, P. L. 344: Jack v. Kintz, 177 Pa. 541, and cases therein cited. Nor have they changed the rule as to the measure of proof: Shober v. Harrison, 3 Pa. Superior Ct. 189.
“We have said in many cases that the evidence must be clear and satisfactorj'- — clear and full proof — clear and unequivocal — it must exclude reasonable suspicion that the property was the husband’s. These are but forms of expression to denote that the property of a husband is not to be covered up or withheld from creditors upon equivocal, suspicious, or doubtful evidence of a wife’s right to it. The family relation is such, and the probabilities of ownership so great on the part of the husband, that a plain and satisfactory case should be made out before the wife can be permitted to hold property against honest creditors Earl v. Champion, 65, Pa. 191. The proof for this purpose (to show the wife’s title as against her husband’s creditors) must be clear and satisfactory: Duncan v. Sherman, 121 Pa. 520; ” Taylor v. Paul, 6 Pa. Superior Ct. 496.
I would affirm the judgment.
W. D. Porter, J., concurs in this dissenting opinion.