Taylor v. Sikes

ShepheRD, J.: Conceding that this case is governed by the laws of Maryland, and assuming, as we must do, in the absence of proof to the contrary, that the 'common law prevails in that State, we are, nevertheless, unable to see how the plaintiff can recover. The finding of the Judge is a little obscure as to whether the feme plaintiff had any interest in the money on deposit in the bank. ITis Honor might very well have found, upon her declaration made in the presence of the husband, together with the other circumstances in evidence, that she did not own any part of the said fund, and we are inclined to think that the case upon appeal is susceptible of the construction that such was his conclusion as a matter of fact. [729] Putting this aside, however, and granting the husband’s right to the money jure mariti, it is well settled, that instead of exorcising his right to the fund, he could have treated it as the wife’s, and constituted himself a trustee in respect to it for her benefit. See Beam v. Bridgers, decided at this term, and the cases there cited. If he could have done this, he could surely have united r with her in its disposition, and this he substantially did by permitting her to relinquish her apparent right to it. The agreement has been executed, and we can see nothing in the case which entitles either of the plaintiffs to'recover back the money which they have voluntarily paid to the defendant. The exceptions as to the admissibility of testimony were not pressed in this Court, and we need not consider them. Affirmed.