Taylor v. Brown

65 Md. 366 | Md. | 1888

Robinson, J.,

delivered the opinion .of the Court.

The following issues were sent by the Orphans’ Court of Baltimore City to the Court of Common Pleas for trial;

1st. Whether the sum of $6588.07, which at the time of the death. of Sarah Ann Brown, was deposited in the Eutaw Savings Bank, or any part thereof belonged to her estate ?

2nd. Whether the sum of $2063.63, being the proceeds derived from the sale of certain property mortgaged by John Creagh and wife to Sarah Ann Brown, was part of her personal estate ?

At the trial of these issues, evidence was offered tending to prove that both ¡of these sums belonged to Sarah Ann Brown, that an account was kept in the Eutaw Savings Bank in the joint names of the said Sarah and her husband, William Broion, and the survivor, and subject to the order of either ; and that the sum of $6538.07, thus on deposit in the Bank, was paid on the order of the husband after the death of his wife.

On the other hand, evidence was offered on the part of the appellees, tending to prove that the money in question belonged to.William Brown the husband; and further, that if the wife had any claim or title to the money, it was paid to the husband and used by him with her Icnoivledge and consent.

During the- trial, the appellants offered to prove b j the witness Taylor, that a few days after the deposit of $5000’ in the Savings Bank, he had a conversation with Mrs. - Brown in the presence and hearing of her husband, in which conversation, she explained to witness why her husband’s name had been placed.upon the pass-book of the Bank, and to which explanation no objection whatever was made by the husband. The $5000 thus deposited was part of the sum of $6538.07 paid to the husband after the death of the wife ; and any explanation by her made in the presence and hearing of her husband, why it was deposited in their joint names, and payable to the survivor, was clearly admissible. If no objection was made by him to such explanation, his silence might fairly be construed as an acquiescence in the truth of the statement made by the wife. And we do not see on what grounds the evidence was excluded. But the bill of exception does not set forth the explanation, to prove which the witness was offered, and for all that appears to the contrary, the exploration may have been wholly unimportant or immaterial. To justify us in reversing the judgment, it must appear that the evidence objected to and excluded worked an injury to the appellants. As was said in Lawson vs. Price, 45 Md., 123, “Before we can reverse the ruling excepted to, we must be able to see that the party really has ground for exception and may have been injured by what was done. Eor aught that appears, the answer of the witness may have been more favorable to the -appellant than to the appellee.” So here it is'impossible for us to say that the appellants were in any manner prejudiced by the ruling below, because the record does not set forth either the purport or effect of the explanation offered in evidence.

Wo see no objection to the ruling in the second exception. The real issue before the jury, was whether the money in controversy belonged to Sarah Ann the wife, or to her husband; and the will of the wife in which she undertook to dispose of the money as her own, was certainly not admissible as against the husband. It was nothing more or less than a declaration on her part, that the money belonged to her; to make it admissible, it must appear that the husband with full knowledge, acquiesced in, or consented to, such disposition on the part of his wife. The record does show that the will was executed in his presence, but it does not appear that it was read in his presence, or that he had any knowledge of its contents. In Edelin vs. Sanders, Ex’r of Sanders, 8 Md., 118, the objection was to the admission on the part of the defendant of his testator’s will, whereby be disposed of certain property as his own, and which the plaintiff alleged had been conveyed to him (the testator) in secret trust. In disposing of this objection the Court said, “ under no state ,of circumstances was the will of "W illiam Sanders competent testimony. To allow it to be given in evidence, would be but to permit a party to testify in his own case and in his own behalf.” And although a party is under our Evidence Act a competent witness in his own case, yet on no principle can his unsworn declaration in his own behalf, not made in the presence of the party to be affected thereby, be offered in evidence. But it is argued that if the will be not admissible as evidence in chief) it was admissible by way of rebutting the testimony on the part of the appellees. They had -given in evidence the declarations of the will, to the effect that the money in controversy belonged to her husband. Such declarations were admissible on the ground of being declarations against her interest, but her declarations made at another time in her own interest, are not admissible by way of rebuttal.

We see no objection to the several instructions granted by the Court. They presented the law of the case fairly to the jury. If the money in controversy did in fact belong to the wife as -her separate estate, and was appropriated by the husband to his own use, with her knowledge and consent, the law does not from such appropriation. imply a promise on the part of the husband to repay it: To create a liability on his part, there must be an express promise to repay or return the same.

Then again, although the money on deposit in the Savings Bank, was part of the price paid by the City of Baltimore for the condemnation of property belonging to the wife, yet if the same was paid by the city to the husband with the wife’s knowledge and consent, and she recognized it as belonging to him, and acquiesced in his dominion and control over it, and the money was afterwards deposited in the Bank in their joint names, payable to the order of either of them, or to the survivor, then in the absence of an express promise by the husband to treat the same as her separate estate, he had the right, upon her death, to draw the money thus deposited, as his own.

(Decided 22nd June, 1888.)

So finding no error in the rulings of the Court wdrich will justify us in reversing the judgment, it must be affirmed.

Judgment affirmed,.