concurring:
If Mrs. Potter had had a clear right to the interest at first allowed her by the probate court, and had relinquished the right when faced by heavy -income taxes on its collection in order to let the money come to her and her step-daughter by bequest under her husband’s will, I fear the cases of Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655, and W. D. Haden Co. v. Commissioner, 5 Cir., 165 F.2d 588, decided by us recently, would stand in her way. I concur in the reversal because I think she had no lawful claim' to the interest. As the majority opinion states, it seems to be conceded that any claim to it which she might have had was bar-red at her husband’s death, so that under Florida law the claim could not lawfully have been paid by the executors.. I go one step further and venture to say, though the question was not presented in the court below, nor argued here, that under Florida law Mrs. Potter could not have a claim against her husband for interest on her money in his hands. As stated in Tresher v. McElroy, 90 Fla. 372, 106 So. 79, the marital relation is in general as at common law but has been modified by (1) Sect. 1 of Art. 11 of the Florida Constitution making all property real and personal of a wife owned by her before marriage or lawfully acquired after-wards by gift, devise, bequest, descent or purchase to be her separate estate, and (2) a statute allowing her to sue (without joining her husband) respecting her real estate, and (3) a statute, Section 5867 of Compiled General Laws of 1927, F.S.A. § 708.03 which was of force in 1930 when the notes in controversy were given, and at Potter’s death, which reads: “The property of the wife shall remain in care and management of the husband but he shall not charge for his care and management, nor shall the wife be entitled to sue her husband for the rent, *647hire, issues, proceeds or profits of her said property.” If Mrs. Potter could contract at all with her husband about the use of her property by him, I do not think she could charge him contrary to this statute for the hire or profits of her property in his hands, and that this would apply to money, interest being the hire or profits on that sort of property. I do not think the promise to pay interest during her husband’s life was enforceable. When she in 1943 abandoned her claim to it, and the probate court expunged that part of her claim, a correct result was reached. She was never entitled to the interest. No taxable income ever accrued in respect of it.