Guyer v. Harrison
| Citation | 103 Pa. 473 |
| Parties | Guyer <I>versus</I> Harrison and Wife. |
| Decision Date | 01 October 1883 |
| Court | Pennsylvania Supreme Court |
Before GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ. MERCUR, C. J., absent
ERROR to the Court of Common Pleas of Union county: Of July Term 1883, No. 22.
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A. H. Dill (D. W. Cox and McDonald & Shaffer with him), for the plaintiff in error.—Mrs. Harrison believed that her father died intestate, and that she was entitled to one-fourth of his estate; when a will was offered for probate, which she believed to be a fraud; in which her husband was named as an executor; whereby her interest was less than her interest under the intestate laws; she had a right to invoke the law, for the protection of her interest, in contesting the will, and incidentally had the right to retain counsel and bind herself for payment for his services: Bovard v. Kettering, 5 Out. 181; Sheidle v. Weishlee, 4 Harris 134; Murray v. Keyes, 11 Casey 384; Lippencott v. Hopkins, 7 P. F. S. 328; Appeal of Germania Savings Bank, 14 Norris 329; Anderson v. Line, 12 W. N. C. 324. It is not disputed that if the decision on the validity of the will had been in Mrs. Harrison's favor, she would have been liable to the plaintiff, because there would have been an improvement in fact to her separate estate. But the result of that litigation one way or the other ought to be immaterial to the question of her liability in this action. The law gave her the title to the property which was the subject of the contract. It was hers by the will or without the will in a larger measure. If she could not defend it, she could not exercise the rights which the law gives. Her husband could not be made liable without his consent, and without the right to put in operation the law which is open to every one else she would be defenceless. With the right of property which the Act of 1848 gives to a married woman is given as an incident to it the right to take care of it and defend it — the right independent of her husband to invoke the law in its defence — and with the right, the duty to pay the necessary and legitimate expenses of the litigation. That was the case here. It was absolutely necessary for the wife to take care of herself. The husband was an executor under the will and a devisee, and it was to his interest to maintain the will. This case differs from all others in the fact that it is a claim for services rendered at her special in stance and request in defence of her right to take and enjoy her separate estate. And if she had a right to institute the proceeding, all the correlative duties and incidents follow, and she is liable to pay counsel fees and expenses.
Wolfe (Leiser with him), for the defendants in error.
It was decided by the court below that under the facts in this case the coverture of Mrs. Harrison is a good defence; not that a married woman is not liable upon her contract for professional services in any litigation, unless resulting favorably to her separate estate.
The plaintiff does not claim that the contract is valid at common law against Mrs. Harrison, but that she was competent to make it by operation of the Act of 1848, relative to the rights of married women. The subject of this contract is not named among those specified in that statute as exceptions to the general rule at common law. A married woman is enabled to hold, use and enjoy her property, not as a feme sole, but as if it were settled to her separate use as a feme covert. When a separate estate has been settled upon her she has no power over such estate beyond what is given her by the instrument creating it, and this was the law before the Act of 1848, as well as since. With regard to her estate of every kind all her disabilities to contract or convey remain, except where removed by statutory provision. Her alleged contract or obligation is not binding upon her, unless made upon the footing of a statute. Her note or bond, though given for necessaries contracted for the support and maintenance of her family, or for improvement of her real estate, is absolutely void. By reason of her disabilities, her rights...
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