Thomas, J.
Black, J., delivered the opinion on behalf of the majority of the judges of division number 1 in this case, as follows :
“William McGuire, as the administrator of the estate of Mrs. Susan Allen, brought this action against William Allen, the husband of the deceased, to recover the proceeds of a check.
' “The facts are these: Mrs. Allen was a daughter of Robert Daniels who died in 1883, and his heirs constituted Mr. Anderson a trustee to settle the estate.' On August 28, 1883, the trustee paid Mrs. Allen $4,556 on account of her distributive share of her father’s estate by a check payable to her order. The trustee handed this check to her husband, the defendant, and he took it home and gave it to her. She signed her name on the back of the check and then 'gave it back to him. He deposited the same in his own name and used the proceeds. She died in 1886.
“The evidence shows that Mrs. Allen, at the time she handed the check to her husband told him to deposit it in his own name so McGuire and the Parker heirs could not get the money. McGuire, who is the administrator suing, was her son by a former marriage, and the Parker heirs were children of her deceased daughter by such former marriage. There is much other evidence to the effect that Mrs. Allen stated on several occasions that she had given the check or money to the defendant, that he had been a good husband to her, that the money belonged to him, and he could do with it as he pleased, that McGuire had not treated her right, and she did not want hipa, to have any of it. Some of [408]*408these statements were made at a time when the defendant was using part of the money in building a house upon his own land, as we understand the evidence.
“ Section 3296, Revised Statutes, 1879, first declares that any personal property including rights in action, which may have come to a married woman during the coverture by bequest, gift, inheritance, etc., shall be and remain her separate property under her sole control, etc., and then provides: ‘This section shall not affect the title of any husband to any personal property reduced to his possession, with the express assent of his wife; provided that such personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless, by the terms of said assent in writing, full authority shall have been given by the wife to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit.’
“1. This section of the statute, as has been often said, produced a radical change in the law in respect of the right of the husband to his wife’s personal property. It secured to her her personal property and choses in action free from any claim of the husband, and free from process of law for his debts, except for his debts created for necessaries for the wife and family. As to all her personal property and choses in action she is in effect a feme sole, and the common-law right of the husband to reduce her property to his possession is restricted to the method pointed out in the statute. As said by this court in the case of Rodgers v. Bank, 69 Mo. 560, ‘ to put an end to all investigations, the law plainly requires the assent of the wife to be in writing; ’ and when speaking of this legislation it is again said in that case : ‘It is the obvious intent of our recent legislation to' restrict within the narrowest limits the power of a husband over his wife’s personalty. Such legislation may lead to hardships, as it does apparently in the [409]*409present case ; but the judiciary have no concern with, the policy or impolicy of legislative enactments. The legislature have required the written assent of the wife to the husband’s reductions of her personal property to his possession.’ Following this early ruling and the plain letter of the statute it has been often held the husband ■can reduce his wife’s personalty to his possession in one-way only, namely, by procuring her written assent] Broughton v. Brand, 94 Mo. 169; Gilliland v. Gilliland, 96 Mo. 522; Hart v. Leete, 104 Mo. 315.
“ 2. But it is insisted the blank indorsement of this •check is a good and sufficient written assent on the part of the wife, and this because the indorsement of commercial paper in blank constitutes a complete and perfect transfer of all the interest of the indorser and vests in the indorsee full ownership of the bill. A blank indorsement of a bill for value does import all this and more, the same as if the undertakings were -written out in full. These implied agreements are a part of the •contract created by the blank indorsement. But, as between the indorser and indorsee, it may be shown the indorsement was upon trust for some special purpose, as from a principal to an agent, to enable him to use the instrument or money in a particular way, or for collection merely. 1 Ban. Neg. Inst. [2 Ed.] sec. 721. The indorsement in this case was without consideration, and was just such an indorsement as would have been proper, had the check been handed to the husband for the purpose of- collecting the- money for the wife. The mere indorsement of the check by the wife and delivery thereof to the husband is not an express assent that he may collect the money for his • own use and benefit. Franc v. Hirdlinger, 41 Ohio St. 298.
“ Our statute still allows the husband to reduce his wife’s personal property to his possession, but this only with her express assent. The word express is used in its ordinary legal signification in contradistinction to implied; as express warranty, an express contract. [410]*410But the statute goes further and says the terms of this express assent must be in writing and give the husband full authority to sell, incumber or otherwise dispose of the property for his own use and benefit. It is, therefore, clear that implied agreements, whether arising from a blank indorsement or otherwise, do not satisfy the-demands of this statute. The terms of the assent must be set forth in the writing giving the consent, and that was not done in this case.
“3. An instruction was asked by the defendant-based upon the theory that Mrs. Allen could and did make a parol gift of the check to her husband, which instruction was i efused. There was evidence to support the instruction, so the question is whether a parol gift by her conferred upon him a full and complete title to the check and the money it represented.
“It seems to be well-settled law that a married woman may bestow her separate property in equity by appointment or otherwise upon her husband as well as-upon a stranger. 2 Story Eq., sec. 1395. But courts of equity always examine such a transaction with great care and caution to see that the wife acted from her-own will and wish, and not from any undue influence. Says Schouler: £ While instances of gifts or voluntary conveyances from husband to wife are most commonly considered, gifts from wife to husband are by no means rare. But in the latter instance fraud or undue influence-may be reasonably suspected; and transactions of this sort are scrutinized by the courts with great care.
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Thomas, J.
Black, J., delivered the opinion on behalf of the majority of the judges of division number 1 in this case, as follows :
“William McGuire, as the administrator of the estate of Mrs. Susan Allen, brought this action against William Allen, the husband of the deceased, to recover the proceeds of a check.
' “The facts are these: Mrs. Allen was a daughter of Robert Daniels who died in 1883, and his heirs constituted Mr. Anderson a trustee to settle the estate.' On August 28, 1883, the trustee paid Mrs. Allen $4,556 on account of her distributive share of her father’s estate by a check payable to her order. The trustee handed this check to her husband, the defendant, and he took it home and gave it to her. She signed her name on the back of the check and then 'gave it back to him. He deposited the same in his own name and used the proceeds. She died in 1886.
“The evidence shows that Mrs. Allen, at the time she handed the check to her husband told him to deposit it in his own name so McGuire and the Parker heirs could not get the money. McGuire, who is the administrator suing, was her son by a former marriage, and the Parker heirs were children of her deceased daughter by such former marriage. There is much other evidence to the effect that Mrs. Allen stated on several occasions that she had given the check or money to the defendant, that he had been a good husband to her, that the money belonged to him, and he could do with it as he pleased, that McGuire had not treated her right, and she did not want hipa, to have any of it. Some of [408]*408these statements were made at a time when the defendant was using part of the money in building a house upon his own land, as we understand the evidence.
“ Section 3296, Revised Statutes, 1879, first declares that any personal property including rights in action, which may have come to a married woman during the coverture by bequest, gift, inheritance, etc., shall be and remain her separate property under her sole control, etc., and then provides: ‘This section shall not affect the title of any husband to any personal property reduced to his possession, with the express assent of his wife; provided that such personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless, by the terms of said assent in writing, full authority shall have been given by the wife to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit.’
“1. This section of the statute, as has been often said, produced a radical change in the law in respect of the right of the husband to his wife’s personal property. It secured to her her personal property and choses in action free from any claim of the husband, and free from process of law for his debts, except for his debts created for necessaries for the wife and family. As to all her personal property and choses in action she is in effect a feme sole, and the common-law right of the husband to reduce her property to his possession is restricted to the method pointed out in the statute. As said by this court in the case of Rodgers v. Bank, 69 Mo. 560, ‘ to put an end to all investigations, the law plainly requires the assent of the wife to be in writing; ’ and when speaking of this legislation it is again said in that case : ‘It is the obvious intent of our recent legislation to' restrict within the narrowest limits the power of a husband over his wife’s personalty. Such legislation may lead to hardships, as it does apparently in the [409]*409present case ; but the judiciary have no concern with, the policy or impolicy of legislative enactments. The legislature have required the written assent of the wife to the husband’s reductions of her personal property to his possession.’ Following this early ruling and the plain letter of the statute it has been often held the husband ■can reduce his wife’s personalty to his possession in one-way only, namely, by procuring her written assent] Broughton v. Brand, 94 Mo. 169; Gilliland v. Gilliland, 96 Mo. 522; Hart v. Leete, 104 Mo. 315.
“ 2. But it is insisted the blank indorsement of this •check is a good and sufficient written assent on the part of the wife, and this because the indorsement of commercial paper in blank constitutes a complete and perfect transfer of all the interest of the indorser and vests in the indorsee full ownership of the bill. A blank indorsement of a bill for value does import all this and more, the same as if the undertakings were -written out in full. These implied agreements are a part of the •contract created by the blank indorsement. But, as between the indorser and indorsee, it may be shown the indorsement was upon trust for some special purpose, as from a principal to an agent, to enable him to use the instrument or money in a particular way, or for collection merely. 1 Ban. Neg. Inst. [2 Ed.] sec. 721. The indorsement in this case was without consideration, and was just such an indorsement as would have been proper, had the check been handed to the husband for the purpose of- collecting the- money for the wife. The mere indorsement of the check by the wife and delivery thereof to the husband is not an express assent that he may collect the money for his • own use and benefit. Franc v. Hirdlinger, 41 Ohio St. 298.
“ Our statute still allows the husband to reduce his wife’s personal property to his possession, but this only with her express assent. The word express is used in its ordinary legal signification in contradistinction to implied; as express warranty, an express contract. [410]*410But the statute goes further and says the terms of this express assent must be in writing and give the husband full authority to sell, incumber or otherwise dispose of the property for his own use and benefit. It is, therefore, clear that implied agreements, whether arising from a blank indorsement or otherwise, do not satisfy the-demands of this statute. The terms of the assent must be set forth in the writing giving the consent, and that was not done in this case.
“3. An instruction was asked by the defendant-based upon the theory that Mrs. Allen could and did make a parol gift of the check to her husband, which instruction was i efused. There was evidence to support the instruction, so the question is whether a parol gift by her conferred upon him a full and complete title to the check and the money it represented.
“It seems to be well-settled law that a married woman may bestow her separate property in equity by appointment or otherwise upon her husband as well as-upon a stranger. 2 Story Eq., sec. 1395. But courts of equity always examine such a transaction with great care and caution to see that the wife acted from her-own will and wish, and not from any undue influence. Says Schouler: £ While instances of gifts or voluntary conveyances from husband to wife are most commonly considered, gifts from wife to husband are by no means rare. But in the latter instance fraud or undue influence-may be reasonably suspected; and transactions of this sort are scrutinized by the courts with great care. Before the wife’s separate use was established in chancery, little or no occasion could a:ise for the wife to bestow her personal property upon her husband, for the-law sufficiently bestowed it without her aid.’ Schouleron Hus. & Wife, sec. 390. Our statute before quoted secures to the wife her choses in action and personal property and declares that the same shall remain her separate property and under her sole control. This-statute, however, according to its own terms, does not-[411]*411affect the title of the husband to any of the wife’s personal property reduced to his possession with her express written assent. The question then is whether the husband can acquire his wife’s separate statutory property by a parol gift, and we conclude he cannot, and for these reasons: He cannot acquire it by reducing it to his possession with her parol consent. Now it is difficult to draw any distinction between a parol gift of personal property by the wife to the husband and a reduction of the same property to his possession with her parol assent. The one being prohibited by the statute, the other must be prohibited ; for there is no real or substantial difference between the two transactions. In construing and applying this statute we must look to the substance of the particular transaction and not simply to the name by which it may be called. To attempt to build up any distinction between a parol gift by the wife to her husband and a reduction of her property to his possession with her parol assent is to break down and destroy the statute. The statute may and in this case appears to work out a hardship, but the remedy is with the legislature.
“As to whether the wife may, for a valuable consideration, sell and transfer her statutory separate property to her husband in the manner and by the means that she may sell and transfer it to a third person we express no opinion, for that is not the case in hand. The judgment must be and is, therefore, affirmed.”
Full argument was had before the court in banc, and, after careful examination of the questions involved, we adhere to the result reached in division number 1, as well as the reasoning upon which the result was reached. The most perplexing problems the courts have to deal with grow out of the property rights of husband and wife, owing to their close, confidential and business relations. The possession of personal property by one is usually the possession by the other, so far as appearances go.
[412]*412Judicial history teaches that husband and wife can, with great facility and plausibility, impress transactions between themselves with that legal effect which their interest or caprice may dictate. And it was no doubt this consideration that impelled the legislature to enact the statute referred to in Judge Black’s opinion herein.
Yery able and exhaustive arguments have been 'presented to show that the indorsement in blank of a bill, bond or note by a wife, and delivery thereof to her husband, meets the requirements of the statute. We do not think so. Without attempting to state what the writing required by the statute must be in form and •substance in aliñases, we will say that it must unequivocally transfer the title to the property of the husband. And it is evident a blank indorsement of negotiable paper, giving it the full effect the law attaches to it, is not such a writing; for it is conceded that the contract created by a blank indorsement is an implied one, and may be explained by parol. -If it should be held that .an indorsement and delivery of negotiable paper was a writing within the meaning of the statute, the very evils the legislature intended to remove would still remain. If it was found to be to the interest of the parties to say it was an absolute transfer of the title, they could say that; if it was to their interest to say that the indorsement and delivery to the husband was merely to authorize him to collect the money for the wife, they could say that, and in either case it would bé a difficult matter • to contradict them. The best interests of 'husband and wife, and their creditors and •others dealing with them, require some fixed rule by which their rights can be ascertained and adjudicated.
The judgment is affirmed.
All concur, except Bakclat, J., who dissents.