WALKER, J.
It is alleged in complainant's bill, and, in effect, admitted in the answer, that the appellant has in his possession the property vested, by ante-nuptial deed, in him, as trustee for the exclusiye use of his wife during her life ; and that he denies the wife’s right to control and manage the same. By the ante-nuptial deed, the naked legal title alone is vested in the trustee : no duties are imposed upon him, to the discharge of which the control and possession of the property are necessary. The intention thát the trustee shall control and possess the property is not indicated by the deed. The real estate is, and was at the date of the trust deed, the residence of the cestui que trust. Much (if not all) of the other property is such that the enjoyment of it will consist in its possession and use. The trust is for the sole and separate use of the beneficiary, who does not seem incompetent to take [251]*251and manage the property ; and the possession of the property would not be inconsistent with the security and protection of the rights of the cestui que trust, or-"those in remainder. Under such circumstances, the cestui que trust is, in equity, entitled to the possession of the property, and the control of it, notwithstanding she is a feme covert and may have only a life estate. To support our conclusion, we cite the authorities without comment. — Hill on Trustees, mar. pp. 272, 273, 384, 385,428; Willis on Trustees, (10 Law Library,) mar. pp. 1190, 84 ; Young and Wife v. Miles’ Executors, 10 B. Monroe, 287; Tidd v. Lester, 5 Maddock, 429; Hodges v. Wood, 12 Ala. 177 ; Barford v. Street, 16 Vesey, 135.
The fact that the trustee in this case is the husband of the cestui que trust, certainly does not militate against the equitable right of the latter to the possession and control of the property. The wife is, as to her separate estate, regarded as a feme sole ; and the authorities are clear, that where the-husband’s rights are, as in this case, expressly excluded, the wife has a right, if she chooses to exercise it, to the dominion and control of the property. — Cook v. Kennerly & Smith, 12 Ala. 42 ; Collins v. Rudolph, 19 Ala. 616 ; Bradford and Wife v. Greenway, Henry & Smith, 17 Ala. 797 ; Jaques v. Methodist Episcopal Church, 17 Johnson, 561, opinion of Spencer, J. ; Hoot v. Sorrell, 11 Ala. 386 ; Forest v. Robinson, 4 Port. 44 ; Bell on Property of Husband and Wife, 498, (67 Law Library, 317); Pharis v. Leachman, 20 Ala. 685.
The appellant had no right, in equity, if we have correctly ascertained the law, in the capacity of either trustee or husband, to exclude the appellee from the possession and control of the property which composed the separate estate. If she should threaten or attempt to use the property in a manner detrimental to any interests in remainder, the pre--ventive power of the chancery court would be adequate to their protection.
2. The bill alleges, and the defendant, in effect, admits, that the husband has denied to the wife the control of the property, and has assumed the exclusive right of its management. If this assumption were the result of fraudulent design, or indifference and disregard of the rights of the cestui que trust, or insensibility to the duties of his office, it would be proper [252]*252to remove the appellant from the position of trustee. But we are convinced, from the responsive allegations of the answer and. the evidence, that the assumption of authority was the result of a misapprehension of his rights and duties, and not of an intention to invade the rights of another, or to violate the law. The evidence has also convinced us, that the trust estate has sustained no injury from such unauthorized exercise of power. Such a mistake might be innocently made by a competent trustee ; and it is not, therefore, of itself, a sufficient ground for his removal. — 2 Story’s Equity, pp. 122-23, §§ 1287, 1288, 1289 ; Hill on Trustees, 191, 192 ; Andrews v. Andrews, 28 Ala. 440 ; Lewis v. Cook & Mitchell, 18 Ala. 334.
Wo have examined the immense mass of testimony taken in this case ; and are of the opinion, that the evidence does not establish the unfitness or incapacity of appellant to fill the office of trustee, or his infidelity or negligence in that office, or that the relations between the appellant and appellee were, at the commencement of the suit, such, being the result of the appellant’s misconduct, as to render him an unsuitable trustee. The evidence has not convinced us, that the appellant perpetrated any act of intentional misconduct, either as husband or trustee, up to the commencement of this suit. We do not consider the effect of the evidence in reference to the beating of the appellee since the commencement of this suit, because any rights which may have accrued therefrom are not the subject of cognizance in this case. A trustee ought not to be removed for a mere disagreement with the cestui que trust, not originating from his culpable act. — Clemens v. Caldwell, 7 B. Monroe, 171.
3. While we do not think the trustee in this case ought to have been removed, the appellee was entitled, in our judgment, to a decree against him for her establishment in the possession and control of the trust property. Such possession and control appertained to her as an equitable right; she was deprived of it by the appellant; and it is the duty of the chancery court to restore her to the enjoyment of that right.
4. The wife is entitled to the income and profits derived from her separate estate ; but if she lives with the husband, and the husband receives such income and profits, it will be pre[253]*253sumed, in tbe absence of an express ’ dissent on her part, to have been with her consent, and will be regarded as a gift to him. — Hill on Trustees, (2d Am. ed.) mar. pp. 425,.4-26, note 1; Macqueen on Husband and Wife, m. p. 299, (66;L. L. 90); Clancy’s Husband and Wife, 854 ; Bell on Property of Husband and Wife, 497-500, (67 Law Li. 316); Moore’s Ex’rs v. Ferguson, 2 Munford, 421 ; Ex parte Elder, in the matter of Williams, 2 Maddock, 287, note 1.
The bill alleges the receipt of the income from the trust estate by the trustee, in despite of the complainant’s dissent. The answer admits the receipt of the income after 1850 ; but says that such receipt was with the complainant’s consent, until December,-1852. The testimony does not show, to our satisfaction, that the wife ever objected to the reception of the income or proceeds from the separate estate, at an earlier day than is admitted in the answer ; and the parties were, until that time, living together. The husband ought, therefore, to be required to account with the wife only for rents and profits, or income, from the first of December, 1852.
5. Our conclusion is, that the proof was not sufficient to authorize a decree that the slave Ely should be regarded as trust property. The allegations of the bill, in reference to the purchase of this property, are denied by the answer ; and the onus of proof is thus cast upon the complainant. The only facts, upon which the complainant can rely for visiting the trust upon this slave, are, first, the declaration of appellant, at the time of this purchase, that he would pay a part of the purchase money, out of his cotton crop when sold; secondly, that the purchase is shown by the answer to have been made at the request of the appellee ; and, thirdly, that about $170 was paid, in two notes, by the appellee. The first two of those facts are susceptible of a construction favorable to the appellant.
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WALKER, J.
It is alleged in complainant's bill, and, in effect, admitted in the answer, that the appellant has in his possession the property vested, by ante-nuptial deed, in him, as trustee for the exclusiye use of his wife during her life ; and that he denies the wife’s right to control and manage the same. By the ante-nuptial deed, the naked legal title alone is vested in the trustee : no duties are imposed upon him, to the discharge of which the control and possession of the property are necessary. The intention thát the trustee shall control and possess the property is not indicated by the deed. The real estate is, and was at the date of the trust deed, the residence of the cestui que trust. Much (if not all) of the other property is such that the enjoyment of it will consist in its possession and use. The trust is for the sole and separate use of the beneficiary, who does not seem incompetent to take [251]*251and manage the property ; and the possession of the property would not be inconsistent with the security and protection of the rights of the cestui que trust, or-"those in remainder. Under such circumstances, the cestui que trust is, in equity, entitled to the possession of the property, and the control of it, notwithstanding she is a feme covert and may have only a life estate. To support our conclusion, we cite the authorities without comment. — Hill on Trustees, mar. pp. 272, 273, 384, 385,428; Willis on Trustees, (10 Law Library,) mar. pp. 1190, 84 ; Young and Wife v. Miles’ Executors, 10 B. Monroe, 287; Tidd v. Lester, 5 Maddock, 429; Hodges v. Wood, 12 Ala. 177 ; Barford v. Street, 16 Vesey, 135.
The fact that the trustee in this case is the husband of the cestui que trust, certainly does not militate against the equitable right of the latter to the possession and control of the property. The wife is, as to her separate estate, regarded as a feme sole ; and the authorities are clear, that where the-husband’s rights are, as in this case, expressly excluded, the wife has a right, if she chooses to exercise it, to the dominion and control of the property. — Cook v. Kennerly & Smith, 12 Ala. 42 ; Collins v. Rudolph, 19 Ala. 616 ; Bradford and Wife v. Greenway, Henry & Smith, 17 Ala. 797 ; Jaques v. Methodist Episcopal Church, 17 Johnson, 561, opinion of Spencer, J. ; Hoot v. Sorrell, 11 Ala. 386 ; Forest v. Robinson, 4 Port. 44 ; Bell on Property of Husband and Wife, 498, (67 Law Library, 317); Pharis v. Leachman, 20 Ala. 685.
The appellant had no right, in equity, if we have correctly ascertained the law, in the capacity of either trustee or husband, to exclude the appellee from the possession and control of the property which composed the separate estate. If she should threaten or attempt to use the property in a manner detrimental to any interests in remainder, the pre--ventive power of the chancery court would be adequate to their protection.
2. The bill alleges, and the defendant, in effect, admits, that the husband has denied to the wife the control of the property, and has assumed the exclusive right of its management. If this assumption were the result of fraudulent design, or indifference and disregard of the rights of the cestui que trust, or insensibility to the duties of his office, it would be proper [252]*252to remove the appellant from the position of trustee. But we are convinced, from the responsive allegations of the answer and. the evidence, that the assumption of authority was the result of a misapprehension of his rights and duties, and not of an intention to invade the rights of another, or to violate the law. The evidence has also convinced us, that the trust estate has sustained no injury from such unauthorized exercise of power. Such a mistake might be innocently made by a competent trustee ; and it is not, therefore, of itself, a sufficient ground for his removal. — 2 Story’s Equity, pp. 122-23, §§ 1287, 1288, 1289 ; Hill on Trustees, 191, 192 ; Andrews v. Andrews, 28 Ala. 440 ; Lewis v. Cook & Mitchell, 18 Ala. 334.
Wo have examined the immense mass of testimony taken in this case ; and are of the opinion, that the evidence does not establish the unfitness or incapacity of appellant to fill the office of trustee, or his infidelity or negligence in that office, or that the relations between the appellant and appellee were, at the commencement of the suit, such, being the result of the appellant’s misconduct, as to render him an unsuitable trustee. The evidence has not convinced us, that the appellant perpetrated any act of intentional misconduct, either as husband or trustee, up to the commencement of this suit. We do not consider the effect of the evidence in reference to the beating of the appellee since the commencement of this suit, because any rights which may have accrued therefrom are not the subject of cognizance in this case. A trustee ought not to be removed for a mere disagreement with the cestui que trust, not originating from his culpable act. — Clemens v. Caldwell, 7 B. Monroe, 171.
3. While we do not think the trustee in this case ought to have been removed, the appellee was entitled, in our judgment, to a decree against him for her establishment in the possession and control of the trust property. Such possession and control appertained to her as an equitable right; she was deprived of it by the appellant; and it is the duty of the chancery court to restore her to the enjoyment of that right.
4. The wife is entitled to the income and profits derived from her separate estate ; but if she lives with the husband, and the husband receives such income and profits, it will be pre[253]*253sumed, in tbe absence of an express ’ dissent on her part, to have been with her consent, and will be regarded as a gift to him. — Hill on Trustees, (2d Am. ed.) mar. pp. 425,.4-26, note 1; Macqueen on Husband and Wife, m. p. 299, (66;L. L. 90); Clancy’s Husband and Wife, 854 ; Bell on Property of Husband and Wife, 497-500, (67 Law Li. 316); Moore’s Ex’rs v. Ferguson, 2 Munford, 421 ; Ex parte Elder, in the matter of Williams, 2 Maddock, 287, note 1.
The bill alleges the receipt of the income from the trust estate by the trustee, in despite of the complainant’s dissent. The answer admits the receipt of the income after 1850 ; but says that such receipt was with the complainant’s consent, until December,-1852. The testimony does not show, to our satisfaction, that the wife ever objected to the reception of the income or proceeds from the separate estate, at an earlier day than is admitted in the answer ; and the parties were, until that time, living together. The husband ought, therefore, to be required to account with the wife only for rents and profits, or income, from the first of December, 1852.
5. Our conclusion is, that the proof was not sufficient to authorize a decree that the slave Ely should be regarded as trust property. The allegations of the bill, in reference to the purchase of this property, are denied by the answer ; and the onus of proof is thus cast upon the complainant. The only facts, upon which the complainant can rely for visiting the trust upon this slave, are, first, the declaration of appellant, at the time of this purchase, that he would pay a part of the purchase money, out of his cotton crop when sold; secondly, that the purchase is shown by the answer to have been made at the request of the appellee ; and, thirdly, that about $170 was paid, in two notes, by the appellee. The first two of those facts are susceptible of a construction favorable to the appellant. The parties were then living together as husband and wife, and the former was in receipt of the income from the separate estate ; and he may reasonably be supposed to have purchased with the supposition that that condition of things would continue, and that therefore the proceeds of the cotton crop would be his by an express or implied gift from the wife. The request of the wife, that the purchase should be made, may be referred to her interest in [254]*254the affairs of her husband, in which, from her conjugal relation, she must have felt a concern. The making of a partial payment of the purchase money, for property previously bought with the funds of another, does not create a trust pro tanto, on the part of the owner of the funds, in the property bought. Foster v. Trustees of the Atheneum, B Ala. 309. At the time of the payment by the appellee of a part of the purchase money, she and her husband were living together, and he was in the receipt of her income as an implied gift; and upon the principles herein before settled, we think such payment must be deemed a gift to the husband.
The decree of the court below is reversed, and the case remanded for further proceedings agreeably to and under this opinion. The next friend of the appellee must pay the costs of the appeal.