75 Md. 195 | Md. | 1892
delivered the opinion of the Court.
Catherine Rost was a widow with two married daughters, and a son about fifteen years of age. One of her daughters was married to J. Henry Schroeder, and the other to August Schrader. In August, 1882, she intermarried with John Loeber. She died in January, 1890; and letters of administration on her estate have been granted*to J. Henry Schroeder. At the time of her second marriage she was possessed of an undivided leasehold interest in a lot of ground in the City of Baltimore, and of a considerable sum of money. The controversy in this case has arisen concerning this money. ' The administrator of Mrs. Loeber filed a bill in equity against John Loeber, praying that he might he decreed to pay
The testimony of Mr. and Mrs. Schrader establishes the contract to our satisfaction. John Loeber undertook to invest his wife’s money for her benefit in certain houses which belonged to him. The contract was very indefinite in its terms; it is not stated in what manner the investment was to be made, or on what conditions. It is probable that the parties had in mind the life estate which the husband would have in his wife’s personalty in case he should survive her, and that they did not intend to change or impair it; but their notions on this subject were vague and inaccurate, and there is an absence of the certainty and precision on this point which are necessary to the formation of a contract. Moreover, the contract, so far as its terms are in any degree clear, was within the fourth section of the Statute of Frauds. It was a parol agreement for an interest in land; by its terms the money was to be invested in real estate and it was therefore in direct conflict with the Statute. Clabaugh and Landers vs. Byerly, 7 Gill, 362; Albert and Wife vs. Winn and Ross, et al., 5 Md., 77. But it does not follow that the wife ought to lose her money because of the invalidity of the contract for investment. Amidst the uncertainties surrounding the transaction it is distinctly shown that the money was not given to her husband, but that her interest in it was retained and that it was their object to secure it by this investment. The contracts of a husband with his wife in reference to her separate property can be enforced against him by her in equity when properly established. The circumstance that this contract was
Mr. and Mrs. Schrader testified that Loeber said “what his wife had, he had it,” and that she had eight thous- and dollars; and from this the inference is drawn that he received this amount from her. The other evidence in the cause shows that she had at least this much money, and we think it the jirst conclusion from the evidence that this was the sum which he received from her on the promise to invest in the houses.
We will reverse the decree of the Circuit Court, and enter a decree in favor of the administrator of Mrs. Loeber for eight thousand dollars, and costs in both Courts.
Decree reversed, and decree for appellant.
(Decided 28th January, 1892.)
The counsel for the appellee, on the 17th of February, 1892, filed a motion for a re-hearing of the foregoing case, with reasons therefor; and a brief was submitted in support of the motion. The Court disposed of the motion in the following opinion:-
delivered the opinion of the Court.
In the brief filed by the appellee in support of the' motion for re-argument, it is supposed that this Court committed an error in founding its opinion on certain testimony which did not support the averments of the bill of complaint. It was- said that the allegata and probata must correspond; and that in making a decree the Court was confined to what was stated in the bill. ■ The testimony in question was not excepted to, and this Court was therefore bound to give effect to it. The 84th section of Article 5 of the Code provides as follows: “On an
As the statute required that we should make our decision on the evidence in the case, without regard to the averments in the bill of complaint, it would have been useless to remand the cause for the purpose of amending the pleading.
Motion overruled.