¶1The facts found in reference to the transactions between William Caldwell and his wife are proved mainly by the testimony of himself, though he is to some extent corroborated by the testimony of one Thompson, who was a brother of Corrilla Caldwell.
¶2These transactions are subject to very great suspicions when taken in connection with all the circumstances of the case. But there is no contradiction of his testimony, and we cannot say that the referee had no right to give credit to it.
¶3We are to assume, therefore, that all the facts found by the referee were established; and it presents the question *245whether upon such a transaction, if it was all fair and honest, between the husband and wife, and 'in all respects as it is now claimed to be, the wife had such a claim upon her husband for the sums of $65 and $600, which he received from her, that he could legally provide for the payment of it out of his.property, to the exclusion of any of his other creditors.
¶4The fund from which those sums were taken was money which she had at their marriage, and there is no doubt that, as the law then was, (it being in her possession), he was legally entitled to it as his own.
¶5If it was so situated that he could reach it by a suit at law, he could do so in despite of her, and a court of equity would not interfere to prevent it. But if it was necessary for him, in order to get it, to apply to a court of equity, it might direct a suitable provision to be made out of it for her, (Udell agt. Kearney, 3 Cowen, 590). If she permitted him to take the possession of it unconditionally, it became his absolutely, (Shirley agt. Shirley, 9 Paige, 363). So, too, if she had died before he reduced it to his possession as his own, he could have the right to do so afterwards. (Westervelt agt. Gregg, 2 Kernan, 202; Blanchard agt. Blood, 2 Barb. S. C. R., 352; Ransom agt. Nichols, 22 Y. Y, 110.
¶6He might also, before he had actually reduced the money to his possession, have assigned it and it would have passed the title to it, but in that case it would have been subject to her equitable right to have a suitable provision for her out of it. (Carteret agt. Paschel, 3 Piere Wms., 197; Bates agt. Daudy, 2 Atk., 206, and Westervelt agt. Gregg, supra.)
¶7The husband is not only entitled to all the personal property and choses in action of Ms wife, except when it is otherwise declared by the recent statutes, and entitled to reduce them to his possession after her death, and entitled to the proceeds of her labor while covert, but.she has no right to dispose of it by will, although he permitted her to receive, manage and invest it in her own name as if it were her own *246property; and evidence of such a course of dealing by the wife with personal property bequeathed to, or earned by her, and her husband’s declarations that she should give her money to whom she pleased, only established an omission to exercise his marital rights in her life time, and do not imply a relinquishment of his rights in case of survivorship. (Ryder agt. Hulse, 24 N. Y., 372; Same Case in supreme court, 33 Barb., 264.)
¶8It is equally true that husband and wife, especially before 1848, could make no valid contract directly between themselves which would be binding at law; and this principle is too familiar to need the citation of authorities.
¶9It, therefore, cannot be disputed that by the marriage between William Caldwell and Gorilla, he became legally entitled to the money in question as his own, and the possession which he acquired of it was with her assent.
¶10How, the questions are presented whether, if her assent to his possession of it was unconditional, it left any interest of -it in her which a court of equity would protect.
¶11And however that may be, although he could make no valid legal contract with her, could he contract or waive the marital rights which he acquired, so as to leave her an equitable right to the fund against the plaintiffs and Crouse & Co., who were not his creditors at the time of those transactions I
¶12The jurisdiction of courts of equity to make provision for the wife out of her estate to which the husband was legally entitled, was first assumed in cases where, it was necessary for him, or those claiming under him, to apply to the court for assistance to obtain possession of the property of the wife, which assistance the court, acting upon the maxim that he who asks equity must do equity, withheld until an adequate settlement was made. (Willard’s Eq. Jur., 636 ; 1 Peire Wms., 450.)
¶13But ever since the commencement of the present century this restriction upon the jurisdiction has been exploded, and *247the wife has been permitted actively to assert her equity as plaintiff. (Id, 636, and 5 Vesey, 737; 5 Mylne and Craig, 105 ; 11 Sims, 569 ; 4 Hale, 6.)
¶14So that, as between'them, her equitable interest in- it, to some extent (to be found bj the court), would remain though his possession of it was unconditional. But Gorilla being in the actual possession of the fund, had a right as against him to retain it, or at least so much of it as the court should decide was equitable for a provision for herself, or rathér to have such provision made for her out of it. And as he could not .sue her at law, there was no way for him to obtain possession of it without doing equity, by making a suitable provision for her.
¶15Upon the facts found in this case, he, as far as he could, waived his martial rights to the fund, suffered a portion of it to be retained by her to use as she would, and received the two sums of $65 and $600 not as his own, but as her equitable trustee, and by that means obtained the possession of it which, for aught that appears, he could not otherwise have done.
¶16I think he could take it as her trustee; that he could assume the relation voluntarily so as to give her the right to treat him as such as between themselves, to the same extent as if he had been made so by an order of the court.
¶17A post nuptial contract between husband and wife by which property is set apart for her separate use, although void at law, will be sustained in equity, where there are no creditors of the husband to be affected. (Galick agt. Strong, 3 Paige, 440, 452.)
¶18“If he takes possession in the character of trustee and not of husband, it is not such a possession as will bar the right of the wife to the property if she survives him. The property must come under the actual control and possession of the husband-, or the wife will take as survivor, instead of the personal representatives of the husband.” (2 Kent's Com., 5th edition, 138.)
¶19*248I think the agreements between Caldwell and his wife,' though not binding at law, were, according to the principles laid down in the cases, valid in equity, and sufficient as between them and all others not then his creditors. (Partridge agt. Harens. 10 Paige 618. Wicks agt. Clark, 8 Paige 161. Schaffner agt. Rutter, 37 Barb., 44.)
¶20Again, there seems to be no doubt that the wife, although she has a valid equity as between herself and husband in her personal estate may waive it, notwithstanding her coverture, and when waived by her, her equity is gone and her interest in it and that of her children is defeated. (Willard’s Eq. Jurisprudence, 637.)
¶21Now, if the wife can waive her martial rights in her personal estate, I see no reason why the husband (he having, while it remains with her, only an equity,) cannot waive his, and come into the possession of it, or a portion of it, as hers; and I see no reason why his afterwards having creditors should make any difference. The precise question has been decided in Woodworth agt. Sweet (44 Barb., 268), where it is held that he may waive his martial rights to her personal estate, and that his agreement with her not to assert such rights equitably entitled her to receive from him payment of such portion of the fund as she had lent Mm. And as it is clear that if the husband does not in his lifetime reduce such property of the wife to his possession, it amounts to a waiver as against all except his creditors, and it belongs to her after his decease.
¶22It would seem' equally clear that he can at once make such waiver at any time, by an act done by him, provided there are then no creditors to be injured by it.
¶23Although the case on the part of the husband and wife is "quite suspicious, yet we must follow the findings of fact reported by .the referee, and therefore the judgment should be affirmed.
¶24Judgment affirmed.
¶25This case is now pending in the court of appeals.