¶1The conversation between the husband and wife appears by her testimony to have been had in the presence of no other person except their family of young children, who are not shown to have taken any part in or paid any attention to the conversation. It must therefore be deemed incompetent evidence as a private conversation between husband and wife. Dexter v. Booth, 2 Allen, 559. Bliss v. Franklin, 13 Allen, 244. St. 1870, c. 393, § 1.
¶2This evidence being laid out of the case, the only facts, proved by competent testimony, or found by the master, are that the money was the separate property of the wife, placed by her in her husband’s hands, and afterwards used by him in his business. There is no proof, on the one hand, that she intended that it should be, or knew that it had been, so used ; nor, on the other, that he received it on any agreement or trust for her benefit, or that she, during the six years that afterwards elapsed before his death, made any claim to it.
¶3Upon these facts, we are of opinion that the bill cannot be maintained. A husband and wife cannot make contracts with each other; and, though he may doubtless be a trustee for her, yet when a wife with her own hand pays money of her separate *161property to her husband, there is no presumption that he receives it in trust for her, but the burden is on her to prove the fact. In the absence of such proof, the money must be deemed to have - been given to him with the intention that it should be applied to the use or benefit of either or both of them at his discretion. Caton v. Rideout, 2 Hall & Twells, 33, 41; S. C. 1 Macn. & Gord. 599, 603. Turner v. Nye, 7 Allen, 176. McClushey v. Provident Institution for Savings, 103 Mass. 300. Bassett v. Bassett, 112 Mass. 99.
¶4The result is that the plaintiff’s exceptions to the master’s report are overruled, the defendant’s exceptions sustained, and the ‘ Bill dismissed, with costs.
¶5 This case was argued at Boston in November before all the judges but Ames and Devens, JJ.