Sabel v. Slingluff

Miller, J., delivered the opinion of the Court. Edward Whittemore died in February, 1812, leaving a widow and five infant children. By a clause in his will be devised all his property, real and personal, to his wife “ as long as she shall remain single,” and requested that “the jnoperty be sold,” and “the proceeds invested for the benefit of her and her children; ” but “in case she should marry again, then she is only entitled to her third.” He appointed his wife his executrix, and she administered the personal estate in the Orphans’ Court, and her administration account shows, that after payment of debts, there remained in her hands the sum of $381.13. In August, 1814, the widow in her own right, and as ¹³⁴ next friend of her children, filed a bill in equity, praying a sale of his real estate under the above clause of her husband’s will.

On this bill a decree was regularly obtained, and sales made by the trustee, and the proceeds brought into Court. In June, 1818, she filed a petition in the equity cause, alleging, that after her marriage to him, she loaned to her first husband the sum of $2000, which she had received from a sale of her own property, •and that he promised to re-pay the same, but never did, and praying that this debt may be paid to her out of the proceeds- of the real estate, his personal estate being insufficient to pay the same. This claim being resisted by the infant children, was rejected by the Court below, and from the order dismissing her petition this appeal is taken. In our opinion the claim was properly rejected.

In the first place, the testimony to support it, the petitioner herself being the principal witness, is very meagre and unsatisfactory. It is admitted that her marriage with Whittemore took place in the spring of 1859, and that the property from which this $2000 was derived was sold in August of that year. Whether this money was paid by the purchaser of the property to the wife or to the husband, is left in great uncertainty. In her examination-in-chief, she says she kept the money and loaned it to him in 1862, but on cross-examination she says the money which came from the sale of the property was paid to her husband. ' Again, she says her husband promised to re-pay the loan a great many times, and constantly during his life recognized it as a debt due to her, but whether the promise to re-pay was made before or at the time he received the money, or whether he obtained it on the faith of such