266 Mass. 180 | Mass. | 1929
The plaintiff, the widow of John A. Barbour, brings this bill in equity against the executor of his will, seeking an accounting of moneys alleged to have been delivered to her husband for investment for her, and payment of the amount found to be due.
Nothing in the agreed facts or in the findings indicates that the transactions attending the deliveries by the wife to the husband were anything other than loans from the wife to a partnership in which the husband was one of the partners. The law in this Commonwealth is established that the wife cannot maintain proceedings either at law or in equity against the husband, or his estate after his death, or the partnership, or surviving partner to compel repayment for money so lent. Gahm v. Gahm, 243 Mass. 374. Young v. Young, 251 Mass. 218, 220. Clark v. Patterson, 158 Mass. 388. The judge who heard the case, however, instead of dismissing the bill, found that in regard to a sum of $3,839.97, received by the husband from the alleged debtor partnership on May 20, 1920, a trust in favor of the wife was impressed, and made a decree directing the payment of this sum with interest to the plaintiff. Both parties appeal.
What has been said disposes of the appeal of the plaintiff. No recovery of the loans can be had.
The defendant’s appeal remains to be considered. The decree made is not within the scope of the amended bill. It is based, not upon delivery of money by the wife to her husband for investment, but upon a transaction not set out in any pleading which appeared in the course of the trial. The prayer for general relief does not authorize a decree
On this ground, if on no other, the decree is erroneous. The parties, however, have, apparently, presented all the facts relating to the transaction and have argued the law applicable to them. The plaintiff contends that if by amendment a sound ground for the decree could properly be brought before us, an order, which might result in dismissing the bill, ought not now to be made, but such amendment should be allowed in this court.
Even if we possess the authority, we ought not to exercise it if amendment would be nugatory, as we think this would be. The cases in which this court has held that equity can grant relief to wife or widow against a husband or his estate have been cases in which there has been fraud; or a failure of consideration; or a receipt of property by the husband from some third person under circumstances establishing a trust relationship; or an obligation binding at its inception. Powell v. Powell, 260 Mass. 505. Young v. Young, 251 Mass. 218. Glover v. Waltham Laundry Co. 235 Mass. 330. Crosby v. Clem, 209 Mass. 193.
Here there is no such thing. The property sought to be impressed with a trust was held by the husband, and did not ' come to him from another. It was no less his and wholly his, always in his possession, that it had been partnership property of his firm. The plaintiff never knew of its existence. No knowledge of any rights as beneficiary of an existing trust in her favor was ever given her by her husband. In such circumstances equity will not assist her. Gahm v. Gahm, supra. The order must be
Plaintiff’s appeal dismissed.
Decree reversed.