Patten v. Patten

• Decision Date: 30 September 1874
• Citation: 75 Ill. 446,1874 WL 9271
• Parties: CHARLES W. PATTENv.MARY J. PATTEN.
• Court: Illinois Supreme Court

75 Ill. 446

1874 WL 9271 (Ill.)

CHARLES W. PATTEN

v.MARY J. PATTEN.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. WILLIAM W. FARWELL, Judge, presiding.

Mr. JNO. N. JEWETT, for the plaintiff in error.

Messrs. ELDRIDGE & TOURTELLOTTE, for the defendant in error.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

The parties to this cause were married in September, 1864. The original bill was filed by the wife in March, 1871, and was to compel her husband to account for and pay over all money coming into his hands between the marriage and commencement of the suit, arising out of her separate estate, and not properly expended for the benefit thereof. No question arises upon the pleadings, and it is unnecessary to state them. A decree passed against the husband, upon which he brought error.

The subject matter involves transactions running through many years, numerous and various, constituting complex and intricate accounts. There was no reference to a master, and we are called upon, by the assignment of errors, to re-examine those accounts.

This court, upon the nature of the matter, and the authority of the case of Dubourg v. United States, 7 Peters, 625, has repeatedly held, that a complex and intricate account is an unfit subject for examination in court, and ought always to be referred to a master, to be examined by him and reported, in order to a final decree. When that is done, specific exceptions can be taken, which may be reviewed in this court. When this court is asked, upon appeal, or error, to re-examine such an account, and the party in whose favor the decree is rendered had thus brought it into court for examination, without reference to a master, the decree will be reversed, with direction to have the reference made, as was done in the case just referred to.

Besides the objections to the amount found by the decree, the counsel for plaintiff in error insists that, because these parties were living together as husband and wife, from their way of dealing, there arises a presumption of consent, on her part, to the appropriation of her income and proceeds of property, by the husband, and that she cannot afterwards recall it. The case of Caton v. Ridout, 1 Mac. N. & G., 47 Eng. Ch. R. 600, is cited to support that position.

There is no controversy in this case that the estate out of which the money or income arose, was the separate estate of the wife, complainant below, under the married-woman act of 1861. In the case of Caton v. Ridout, the estate in the wife was an equitable one, under a settlement for her separate use.

We endeavored, in the case of Cookson v. Toole, 59 Ill. 515, to point out some of the distinctions and implications arising therefrom, between the separate estate of the wife, as the creature of equity, and that existing by operation of the statute of 1861. There seems, upon reflection, to be one distinction between the two estates and their incidents that has some bearing upon the question under consideration. Although the estate of a married woman, under a settlement for her separate use, was recognized and maintained in equity with the incidents of ownership, yet the common law marital rights of the husband co-existed. At law, the being of the wife became, by the marriage, incorporated into, and consolidated with, that of the husband, who had the absolute right to all her personal property in possession, to her choses in action reduced to possession during his life, and to the rents, issues, and profits of her real estate. This being the legal aspect of the relation, she, of course, could seek no remedy for deprivation of equitable rights, except in a court of equity; and no controversy could arise in that forum between husband and wife, in respect to the separate estate of the latter, without involving more or less conflict between the legal rights of the husband and the equitable rights of the wife, the latter being without efficiency except in so far as they controlled and held in subserviency the husband's legal rights.

But where the wife has a separate estate, within the purview of the statute, the case is entirely different. There, as between her and her husband, she holds an absolute legal estate, if that would be the character of it in a feme sole. No question as to subordination to the common law rights of the husband can arise; for, backward as may be courts, or the profession, to recognize the situation, those rights are by the statute swept away and gone. She is entitled to own, hold, possess, and enjoy such estate precisely as if she were sole and unmarried. As to such estate and her relations thereto, ...