The opinion of the court was delivered by
Ross, J.No resulting trust in favor of the orator in the premises in controversy was created by his payment of the purchase money since the defendant was the wife of the orator at the time the conveyance was taken to her. Payment for premises by a husband, and a conveyance of the same to the wife, with no other facts shown, vests an absolute title to the premises in the wife. In such a case, the law, instead of presuming that the payment and conveyance was intended to be for the benefit of the husband, as it would if the conveyance had been taken to a stranger to the family relation, presumes the payment to have been made by him by way of an advancement, or as a gift to the wife, for the purpose of making provision for her future support. 1 Leading Cases in Equity 280, and cases cited; Whitten et als. v. Whitten, 3 Cushing, 197 ; Wallace v. Bowens, 28 Vt., 630. Hence to entitle the orator to a conveyance of the premises to himself from the defendant, he must fairly establish that, at the time he paid for the premises and took a conveyance thereof to the defendant, then his wife, it was mutually understood between them, and was their then intention and purpose, that the defendant should take the conveyance of and .hold the title to the premises, not as the title to her own property, but as the title to the property of the'orator. We fail to find such understanding, intention and purpose established by the testimony. From the orator’s previous failure in business, and the consequent loss of most of the property which the defendant had received from her father’s estate; from her refusal to sign the deed conveying away the farm, unless she could have a deed of the premises in controversy; from what took place between the parties at the time of the conveyance, and from the inquiries which they made of Mr. Deane in regard to the rights of the orator if the property was conveyed to the defend*560ant, we are satisfied the defendant desired tbe conveyance to licr-self, that she might hold the property as her own beyond the control of the orator, or the reach of his creditors, and that the orator then understood that such was her purpose and desire. The only thing it seems to us which has turned out differently from what the orator then expected is, that the defendant has since then sued out a libel for and obtained a divorce of the marriage relation then existing between them, and thus cut off whatever rights and enjoyment of the property he might have bad if she had continued to remain his wife. The orator has failed to establish a right to have the premises conveyed to himself.
The orator asks to have a certain number of silver spoons and a gold chain delivered to him by the defendant. A part of the spoons were a present, made by the orator to the defendant before their marriage, and a part of them were given to the defendant by her mother during the coverture. We find from the testimony that the defendant during the coverture had the control of and kept these spoons as her own separate property, and was allowed to do so by the orator. We also find that the gold chain was a gift from the orator to the defendant while she was his wife. The law is well settled in this State, that the husband may surrender to the wife the right to her personal property which the law gives him by reason of the marriage ; that he may do this by an ante nuptial contract to that effect, by allowing her to claim and control for a long time property given her during the coverture as her separate property, and refraining to exercise the right which the law gives him to take from her such property and use it as his own, and by making gifts himself to the wife. The law docs not deal in nonentities, and allow the husband to give a piece of property to the wife as her own one moment, that he may retake, it to himself the next moment. When he makes a gift to his wife either before or after marriage, or allows her to hold and control property given her during the coverture as her own separate property, for a great length of time, and especially till a divorce is sought, as was done in this case, he thereby surrenders and waives the right, which the law confers on him as husband, but *561for such surrender and waiver, to take the wife’s personal prop-ei’ty, hold, and use it as his own. Albee, adm’r., v. Cole, 39 Vt., 319 ; Child v. Pearl, 43 Vt., 224, in which Judge Barrett ably collates and reviews the authorities on this subject.
The decree of the court of chancery dismissing the bill is affirmed.