Barton v. Barton

Grason, J., delivered the opinion of the Court. The question presented by this appeal for our determination is, whether an action at law can be maintained by the widow of a deceased party, against his executors, for the recovery of money loaned by her to her husband before marriage, and for the value of securities belonging to her, of her sole and separate estate, and loaned to the husband during the marriage, upon his express promise to re-pay her. There is no controversy in regard to the facts of the case, and the only defence to the suit which was attempted to be made, was one of law, raised by the three rejected prayers of the appellants, that upon the pleadings and evidence, the appellee was not entitled to recover in this form of action. The marriage between William A. and Caroline Barton took place after the adoption of the Code, and the first, second and third sections of the 45th Article of the Code provide that a married wminan shall hold, to her sole and separate use, all the property, real and personal, which may belong to her at the time of the marriage, or which she may thereafter acquire by gift, grant, devise, bequest, or in a course of distribution, with the power of devising the same as fully as If she were a féme sole.

It is not necessary for her to have a trustee to secure to her the sole and separate use of her property, but the legal title ²²⁴ thereto is, by law, vested in her. The fourth section confers upon a married woman, having no trustee, the right to sue, by next friend, in a Court of Law or Equity, in all cases for .the recovery, or security, or protection of her property as fully as if she were a feme sole. There is no doubt of the right of a married woman to sue, by her next friend, either at law or equity, in any matter perfectly cognizable in such courts, any stranger for the recovery, security or protection of her property. Bridges & Woods vs. McKenna, 14 Md., 260 .

Rut it has been urged in argument that she cannot sue the husband at law, and that, after his death, no action will lie against his' executors or administrators, unless it could have been maintained against him during his