(after stating the facts.) The testimony is voluminous. It would be needless to set it out and to discuss it in detail. It suffices to say that we are of the opinion that the chancellor’s findings of fact are not clearly against the weight of the evidence. In fact, the fair preponderance may be said to be in favor of the chancellor’s findings.
Appellants rely upon -section 5227, Kirby’s Digest, as authority for having appellee declared a trustee of the money received by him from his wife, and for the sale of her land. That .section is as follows: “The fact that a married woman permits her husband to have the custody, control and management of her separate property shall not of itself be sufficient evidence that she has relinquished' her title to .said property, but in such cases the presumption shall be that the husband is acting as the agent or trustee of the wife. This presumption may be rebutted by any evidence establishing a sale or gift by the wife to the husband of such property.” By the very terms of the statute, the presumption of agency or trusteeship, which follows from the custody, control and management of the wife’s property by the husband, may be overcome by evidence showing that the wife gave the property to her husband. It is unnecessary for the proof to show a formal gift, in order to overcome the statutory presumption. But a gift may be and will be inferred when the proof shows that the money was received by the husband and used with the knowledge and consent of the wife in such manner as to preclude the idea or inference that she expected him to account for same to her as agent or trustee. Chancellor Cooper in Lishey v. Lishey, 2 Tenn. Ch. 5, after citing the rulings of certain English cases, says: “The weight of authority, in accordance with these rulings, undoubtedly is that if the husband and wife, living together, have for a long time so dealt with the separate income of the wife as to show that they must have agreed that it should come to the hands of the husband to be used^by him (of course, for their joint purposes), that would amount to evidence of a direction on her part that the separate income, which she otherwise would be entitled to, should be received by him.” See also McLure v. Lancaster, 58 Am. Rep. 259; Lyon v. Green Bay & Minn. Ry. Co., 42 Wis. 548, and other authorities cited in appellee’s brief. The evidence showing an intent upon the part of the wife to change the character of the holding and destroy the trust which the law raises should be clear. See Lishey v. Lishey, supra, and cases cited.
The separate property of a married woman remains such under 'the law “so long as she may choose.” .Kirby’s Digest, § 5207. She may choose not to have it remain so, as the proof tends strongly to show she did in this case. The proof is clear enough.
The appellee and his wife lived together, after the death of her father, about forty years. As early as 1867 appellee received $800 of the money of his wife for which appellants seek to hold him as trustee. This sum was his by virtue of his marital rights under the law prior to the passage of the act of April 28, 1873, for the protection of married women. From 1870 to 1884 appellee received the further sum of $1,700, as found by the chancellor. The appellee testified that the money turned over to him by his wife from time to time “was done freely and with her full consent, and with the full knowledge of what particular use he expected to make of it. I never in all my life,” says he, “heard my wife say or intimate in any way that she wanted the money received from her father’s estate kept separate.” The testimony shows that he expended the money from time to time during all these years for general domestic purposes for the benefit of both in the usual way “to make a living with, in running the farm, and such like.”
The findings of fact and conclusions of law being correct, the decree of the chancery court is in all things affirmed.