Pettit v. Fretz's Executor

• Decision Date: 01 January 1859
• Citation: 33 Pa. 118
• Parties: Pettit versus Fretz's Executor.
• Court: Pennsylvania Supreme Court

33 Pa. 118

Pettit versus Fretz's Executor.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Bucks county.

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C. E. & J. L. Du Bois, for the plaintiff in error.

Hart and Lear, for the defendant in error.

The opinion of the court was delivered by WOODWARD, J.

Very soon after the elective judiciary came into power in 1851, this court was called on to commit itself to an interpretation of the Married Woman's Act of 11th April 1848. Two modes of dealing with that statute were open to us. On the one hand, we might adhere to a very literal interpretation, and say that the married woman shall possess her separate property as fully after marriage as before, that she shall own, use, and enjoy it as if she was a feme sole, and that it shall not be liable for her husband's debts. And for this mode of reading the statute we had the authority of Cumming's Appeal, 1 Jones 272, and Goodyear v. Rumbaugh, 1 Harris 480; in both of which cases Judge ROGERS had adhered to the most strict and literal interpretation of the statute, and had declared that a married woman, since the Act of 1848, was to all intents and purposes a feme sole as to her separate estate. If a feme sole, it followed necessarily that her testamentary guardian, she being still a minor, could not be called to account by her husband — that a payment of her moneys to her husband was no payment — that she might bring suits in respect to her separate estate, in her own name, against her husband, or any one else — that she might buy and sell, and convey by deed or otherwise, without or even against his consent — that although marriage gave him control of her person, her time, and her industry, to some extent, yet, so far as the exclusive ownership, use, and enjoyment of her property would interfere with the marital rights of the husband, they must give way to her superior rights of a feme sole.

It was impossible to shut our eyes upon the consequences of such a construction. We could not fail to see that it would work a repeal of our old statutes of conveyancing which the legislature had exhibited no intention to repeal; that it would change the law of actions; that it would expose wives continually to the hazards of barter and business, without that aid and protection which the common law entitled her to receive from her husband; that it would dethrone him from the headship of the family, take her thoughts and time from the care of the family, and introduce confusion and discord, which would in their turn entail upon the public, evils tenfold greater than those which the statute was intended to remedy.

There was another mode of interpreting the statute — that was by its spirit and intention. Blackstone had told us that there were three points to be considered in the construction of all remedial statutes — the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was for which the common law did not provide; and what remedy the parliament hath provided to cure the mischief.

At the making of this statute, the common law in Pennsylvania made marriage a gift absolute to the husband of all the wife's chattels in possession, and of her power to reduce into possession her choses in action. If he exercised this power during coverture, and reduced her choses in action into possession, they also became his absolute and exclusive property. He was also entitled to the possession of her real estate and to the rents, issues, and profits. The mischief of this was, that through the misfortune or reckless improvidence of the husband, her estate very frequently went to satisfy his creditors, and she was often left with a family of children to struggle against the manifold ills of poverty. That the wife's separate estate should go to the husband's creditors, was considered an evil of sufficient magnitude to justify the interposition of legislative authority. And it is the business of the judges, says Blackstone, so to construe the act as to suppress the mischief and advance the remedy. We have endeavoured to do so. We have held the wife's estate beyond the grasp of the husband's creditors; but as the act did not say she should be treated as a feme sole, or that she should have power to convey, or sue, or be sued, in her own name — and as we saw a virtual dissolution of the marriage relation in such a construction of what was said, we have withheld ourselves from it, not without difficulty and liability to misunderstanding, but nevertheless persistently and consistently. We hold that she is to own, use, and enjoy her separate estate, not as a feme sole, but as a married woman, and that her husband's creditors are not to touch it.

The first case that came before the court after its reconstruction in 1851, was Peck v. Ward, 6 Harris 506, where the question was whether a married woman could convey her estate by deed without her husband joining in it. The Act of 1848 did not, in terms, repeal the Act of 1770, which required husband and wife to join in conveying her estate. Still it was argued, that under the Act of 1848, she was to own, use, and enjoy her estate as fully as if she had not married. If sh...