Sabel v. Slingluff

Miller, J., delivered the opinion of the Court. Edward Whittemore died in February, 1812, leaving a widow and five infant children. By a clause in his will be devised all his property, real and personal, to his wife “ as long as she shall remain single,” and requested that “the jnoperty be sold,” and “the proceeds invested for the benefit of her and her children; ” but “in case she should marry again, then she is only entitled to her third.” He appointed his wife his executrix, and she administered the personal estate in the Orphans’ Court, and her administration account shows, that after payment of debts, there remained in her hands the sum of $381.13. In August, 1814, the widow in her own right, and as [134] next friend of her children, filed a bill in equity, praying a sale of his real estate under the above clause of her husband’s will. On this bill a decree was regularly obtained, and sales made by the trustee, and the proceeds brought into Court. In June, 1818, she filed a petition in the equity cause, alleging, that after her marriage to him, she loaned to her first husband the sum of $2000, which she had received from a sale of her own property, •and that he promised to re-pay the same, but never did, and praying that this debt may be paid to her out of the proceeds- of the real estate, his personal estate being insufficient to pay the same. This claim being resisted by the infant children, was rejected by the Court below, and from the order dismissing her petition this appeal is taken. In our opinion the claim was properly rejected. In the first place, the testimony to support it, the petitioner herself being the principal witness, is very meagre and unsatisfactory. It is admitted that her marriage with Whittemore took place in the spring of 1859, and that the property from which this $2000 was derived was sold in August of that year. Whether this money was paid by the purchaser of the property to the wife or to the husband, is left in great uncertainty. In her examination-in-chief, she says she kept the money and loaned it to him in 1862, but on cross-examination she says the money which came from the sale of the property was paid to her husband. ' Again, she says her husband promised to re-pay the loan a great many times, and constantly during his life recognized it as a debt due to her, but whether the promise to re-pay was made before or at the time he received the money, or whether he obtained it on the faith of such promise is not stated, and she admits she never took from him any evidence of the indebtedness. In fact the proof is altogether different from that in Drury and Wife vs. Briscoe, 42 Md., 154, where the claim of the wife was sustained. The transac [135] tion having occurred prior to the adoption of the Code, the case would seem to fall within the decision in Plummer and Wife vs. Jarman, 44 Md., 637, where it is said: “ The money arising from the sale of the wife’s inheritance, was not her separate estate, as it would he now under the provisions of the Code, hut on the contrary, it was subject to the control of the husband by virtue of his marital rights; and the husband’s rights having ■attached, the money as it was received by him, was at his disposal absolutely, and any mere promise that he may have made to his wife as to its application was purely voluntary and without consideration.” But assuming we are wrong in this, and that there was •a sufficient consideration for the promise made by the husband, the only effect was to create a debt due by him to his wife, and that debt was clearly barred by the Statute of Limitations, which we understand from the arguments of counsel on both sides, was relied on by the infant defendants in the Court below, even if the answer of their guardian, reserving all matters of defence, either in fact or in law, were not to be regarded as a sufficient interposition of the plea. We find nothing in the record to prevent the operation of the Statute. The petitioner in her testimony says she mentioned the claim to the Orphans’ Court, and they told her the property all belonged to her, and she thought it was not worth while to say anything more about it. The bill which was filed in 1874 was not a creditors’ bill, but for a sale of the property, in order to carry out the directions of the will. The insertion of a prayer for general relief in that bill, cannot have the effect to convert it into a creditors’ bill for the sale of the realty to pay debts upon an insufficiency of personal assets, so as to prevent the running of the Statute as against a debt due to the complainant and recoverable under such a bill. Unquestionably then the first presentation of this claim as against the proceeds of [136] the real estate was by the petition filed in 1818, more-than five years after her husband’s death, and it was-therefore clearly barred by the Statute. (Decided 19th June, 1879.) Order affirmed, and cause remanded-