M'Cormick's Adm'r v. M'Cormick

7 Va. 66

• Court: Supreme Court of Virginia
• Decided: January 15, 1836
• Status: Published

Opinion

Martha, the wife of David M’Cormick, left her husband’s house during his absence from home, carrying away with her 200 dollars of her husband’s money. She went to the house of her brother Samuel Black, with whom she continued to reside during her husband’s life. She brought a suit in chancery against her husband for a separate maintenance, which she prosecuted by her brother as her next friend. That suit resulted in the dismission of her bill. After the death of the husband, his administrator exhibited a bill, in the superiour court of chancery of Staunton, against her and her ^brother Black, alleging that she had, when she left her husband’s house, carried away with her a large sum of money, and some other property, belonging to him, and that she had put the money and property into her brother’s possession ; praying a discovery of the property, and of the amount of the money, she had so taken away and put into her brother’s possession, and a decree for the same against both or either of the defendants who should be found to have appropriated it. The defendant Black, in his answer, denied that he had received any of the money or any other property. Mrs. M’Cor-mick, in her answer, acknowledged that she had. taken away with her, at the time she left her husband’s house, 200 dollars of his money; which, she said, was no more than .was proper and necessary for her subsistence. She added, that the whole of this money had been expended by her in defraying the costs of her suit against her husband for maintenance. And it appeared by the proofs in the cause that it had been so expended.

The chancellor declared, that as the brother denied that he had received any part of the money, and there was no proof to the contrary, there could be no relief against him; that the plaintiff succeeded only to the rights of his intestate, and as the intestate could not have recovered against his wife, neither could his administrator recover against the widow; so that there could be no relief against her: therefore, he dismissed the bill. The plaintiff appealed from the decree to this court.

Johnson, for the appellant, submitted the case without argument.

And the court affirmed the decree.