(after stating the facts). The only issue on this appeal is whether or not the money on deposit in the banks in the name of A. B. Watson at the time of her death was her property or the property of J. B. Watson, her husband. The learned chancellor rendered an elaborate opinion which shows that he has thoroughly considered every phase of the testimony presented by this record. Concerning the title to the money on deposit in the banks in the name of appellee’s wife at the time of her death he says: “By the conduct of the wife and the plaintiff all the moneys deposited in the wife’s name to her death must be held as the husband’s moneys, for she permitted him to so deposit and use the same.”
(1) As to the time deposits the trial court, as we view it, by the above conclusion clearly misapprehended the facts. The $500 time deposit in the First National Bank which was made on October 8,1915, and for which a certificate was issued in the name of A. B. Watson (No. 511) was funds derived from the sale of real estate, the title to which, the undisputed evidence shows, was in the -name of Anna B. Watson. The appellee, himself, testified that this sum was the proceeds from the sale of a piece of property which belonged to his wife and which he sold to Mr. Glynn and the money was deposited in his wife’s name as quick as he sold the property which occurred about two years before her death. This money which was a time deposit and for which the certificate was issued was never used or changed by the appellee from the •name of his wife to his own, nor was it changed in any way, but remained as originally deposited under certificate number 511 until sometime after Mrs. A. B. Watson’s death.
True, the appellee also testified that the property which he sold to Mr. Glynn was property which he had purchased with his own funds and to which he had had the title made in the name of his wife, A. B. Watson. When asked why lie had done this, he stated that he commenced that way when he came to Benton; he wanted his wife to have title to the real estate.
Section 5225 of Kirby’s Digest provides, in snb-' stance, that any person who shall give any property to a married woman may schedule and record the same as the separate property of such married woman with the same and like effect as though such had been done by such married woman, and any conveyance shall have all the effect of a schedule filed by the married woman herself.
Section 5226 provides that the separate estate and property of a married woman shall not be forfeited nor shall her right and title thereto be prejudiced by a failure or neglect to file the schedule, but such failure in a suit relating to said property only has the effect of placing the burden upon the married woman to show that the same was her separate property.
As to the $500 time deposit in the Bank of Benton, this was derived from the dividends on an insurance policy which appellee carried on his own life in favor of his wife, Mrs. A. B. Watson, and which he had collected some two or three years prior to her death and immediately deposited in his wife’s name in the Bank of Benton. The fund so deposited remained in her name under the same certificate number until after her death.
The testimony of the appellee himself shows that these time deposits were made by him for his wife and certificates taken in her name because .he had several years before concluded to put the title to the property acquired by him in her name. Therefore, it appears from the undisputed evidence that these time deposits were really the funds of Mrs. A. B. Watson by gift from her husband before they were deposited by him in the banks and that when he so deposited them he was merely depositing her own funds.
While he testified that “what was his was hers and what was hers was his, ’ ’ yet his conduct with reference to these time deposits clearly shows that he did not withdraw them and place them on the general checking account, did not cheek against them but by allowing them to remain on deposit in the name of his wife he treated them as the separate property of his wife. The facts disclosed by the record do not warrant the conclusion that Mrs. Watson permitted her husband to have the absolute custody, control and management of these time certificates. The burden was upon the appellee to show by some affirmative act with reference to these funds that he did have custody, control and management thereof with the right to use the same as his own before it could be said that his wife had made a gift to him of the funds. Such being the case, if she had permitted him to have the. custody, control and management thereof, this fact under the statute would not have been sufficient evidence that she had relinquished her title to the property, but in such case his custody, control, and management under the statute would only create a presumption that he was acting as her agent.
Under such a state of facts the burden would be upon Watson to overcome this presumption by showing that his wife had made a gift of the property to him. See section 5227, Kirby’s Digest.
There is no evidence to warrant any such conclusion as to these time deposits, but. the undisputed evidence, as we have already observed, is to the contrary.
(2) The checking account stands on a different footing from that of the time deposits. The testimony of Mrs. Wallace shows that her mother was in the possession of the bank deposit books after the transfer of the cheeking account to her name. This, coupled with the fact that such account was changed by J. B. Watson to the name of his wife, was sufficient to establish the completed gift inter vivos by J. B. Watson to A. B. Watson. In re Holmes, 79 N. Y. Supp. 592; Goels v. People’s Savings Bank, 67 N. E. 232; Barker v. Harbeck, 2 N. Y. Supp. 425; Watson v. Watson, 39 Atl. 201, and cases there cited; Wickford v. Corey, 55 Atl. 684; Halowell Savings Inst. v. Titcomb, 51 Atl. 249. See also King, Admr. v. Allen, 132 Ark. 54.
Nevertheless, we are convinced that the preponderance of the evidence also shows that Mrs. A. B. Watson after the transfer of the funds in the checking account in her name did not intend to hold or use the same as her sole and separate property. On the contrary the evidence is practically undisputed that she permitted her husband to have the custody, control, and management of the property precisely the same as he had done when the account was in his own name.
Before the garnishment proceedings were had the appellee had a general checking account in his own name in which he deposited the money of his own and also the moneys derived from sales and rentals of property which belonged to his wife and all the funds that represented their joint efforts. He drew on this account to pay for the general expenses of the family and had the custody, control and management of all their separate and joint funds just as if the same were all his own. After the garnishment proceedings the testimony of the appellee shows, and there is no evidence to the contrary, that he abandoned the account in his own name and opened the account in his wife’s name without her knowledge and without consulting her. He continued thereafter to deposit moneys and to check on this account just as he had done before except that the checks were signed A. B. Watson by J. B. Watson.
Appellee testified that his wife never drew a check for any purpose unless he asked her to. His testimony shows that the transfer of the account from his name to that of his wife was at the suggestion of the cashier of the bank, and that it was understood between him and the bank that the account was to be handled the same as it had been before the transfer except that the checks were signed A. B. Watson by J. B. Watson. His testimony shows that his wife was cognizant of these facts. After the death of his wife, Watson continued to deposit his own money in her name for several months.
The above facts are sufficient to overcome the statutory presumption that he was acting as an agent or trustee in dealing witli the funds of his wife and warranted the inference that she had made a gift of these funds to her husband and that she intended for him to use the money as his own.
The case as to the funds in the checking account comes well within the doctrine of Lishey v. Lishey, 2 Tenn. Ch. 5, quoted by us in Wyatt v. Scott, 84 Ark. 355-8, as follows: ‘ ‘ The weight of authority 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 have 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. ’ ’
We also said in the above case, í£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.”
It follows that the decree of the chancellor awarding the amount of the funds in the checking account, to-wit, the sum of $926.25 to the appellee will be affirmed, but the decree, in so far as it awards the title to the amount of the funds of the time deposits, to-wit, the sum of $1,000, to the appellee, will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion and for such other and further proceedings according to law as may be necessary to protect the respective rights of the parties.