Linker v. Smith

15 F. Cas. 561, 4 Wash. C. C. 224

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1818
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

That the secret settlement made by the plaintiff’s wife, shortly before her marriage, and in contemplation of that event, and without the knowledge of her intended husband, was a fraud upon his marital rights, admits not of a doubt; and has been candidly acknowledged by the counsel for the defendant. But he contends, that the fund in his hands, which forms the subject of this suit, ought not to be taken from him, until the plaintiff has done equity on his part, by paying to the defendant the debt alleged to be due to the estate of his testatrix; to ascertain which, it is insisted that an account ought to be directed. Without giving an opinion upon this question, if a proper foundation for directing an account were presented to the court; it is a sufficient answer to the argument, that there is not the slightest evidence that the debt referred to in the answer was due by the plaintiff’s wife to Mrs. Graham. The answer does not contain such an allegation, and the witness relied upon to establish the claim does, in effect, disprove it. That witness indeed speaks of another, and a very different claim asserted by Mrs. Graham, which she arbitrarily converted into the one which is annexed to the answer. There is no proof that there was any balance upon the partnership concern alluded to by the witness, due to Mrs. Graham; and if it were proved, still it is not the claim asserted in the answer, and consequently it could not be made the foundation of a decree for an account. There is, in short, no evidence to establish any claim against the plaintiff’s late wife, or which affords sufficient ground to warrant this court in entangling the parties in the settlement of a partnership account between two deceased partners; when there are probably no materials for making such a settlement, and to withhold from the plaintiff an acknowledged right to the bank shares in the name of the defendant, until that account should be taken. If the defendant, as executor of Mary Graham, has a claim of any kind against the plaintiff, the remedy is plain; and so far as appears to the court, it is safe, as the plaintiff has given security, and there is no evidence of its insufficiency. Decree that defendant transfer, &c.