Flaherty v. Columbus

41 App. D.C. 525, 1914 U.S. App. LEXIS 2215

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1914
• Docket: No. 2589
• Status: Published

Opinion

Mr. Chief Justice Síiepakd

delivered the opinion of the Court:

We agree with the learned trial justice that the depositions taken show that Michael Flaherty and his wife when married were poor, but she had $637 on deposit in a bank. Seeing an opportunity to buy an established saloon business, she turned over her money to him for the purpose.

lie started in the business with her money. During his last illness and about a week before his death he was told by a priest of his church that if he had anything to fix up he would better attend to it, — meaning that he would better make a will. His reply was: “There is nothing to fix. We both of us worked together. It was as much hers as mine.” Ho further said “there is a fewr hundred dollars in a bank, and I must turn it over to her.” lie then called for a check, signed it, and delivered it to her. What became of this check does not appear. It seems not to have been presented for payment.

Passing by questions of joint tenancy, partnership, and trusts that have been argued, we think that the facts and circumstances of the case show that the husband and wife were jointly interested in and possessed of the business and its proceeds, and that it constituted an estate by the entirety. Estates by the entirety vrere not abolished by the married woman’s act. Alsop v. Fedarwisch, 9 App. D. C. 408, 416. Such estates exist in personalty as well as realty. Freeman, Cotenancy, sec. 68. The husband and wife are seized and possessed per lout el non per my, and the whole remained to the survivor. Hunt v. Blackburn, 128 U. S. 464, 469, 32 L. ed. 488, 490, 9 Sup. Ct. Rep. 125; Alsop v. Fedarwisch, 9 App. D. C. 408, 418; Freeman, Cotenancy, sec. 64. The decree was right, and is affirmed, with costs payable out of the assets of the estate of Lawrence Flaherty. Affirmed.