Starrett v. Wynn

• Decision Date: 17 January 1828
• Citation: 17 Serg. & Rawle 130,17 Am.Dec. 654
• Parties: STARRETT, by his GUARDIAN, LIGGETT, v. WYNN and another.
• Court: Pennsylvania Supreme Court

17 Serg. & Rawle 130

17 Am.Dec. 654

STARRETT, by his GUARDIAN, LIGGETT, v. WYNN and another.

Supreme Court of Pennsylvania.

January 17, 1828

IN ERROR.

If a husband desert his wife and cease to perform his marital duties, the acquisitions of property made by the wife, during such desertion, are her separate estate, and she may dispose of them by will or otherwise.^[a]

WRIT of error to the Court of Common Pleas of Chester county.

This was an action of trespass, brought by the plaintiff in error William Starrett, to recover damages for certain personal property seized and sold by John Wynn, one of the defendants in error, as a constable, under an execution at the suit of Joshua Evans, the other defendant in error, against a certain Reuben Starrett. The property in question once belonged to Reuben Starrett, but had been sold under an execution at the suit of his sister, Mary Starrett, bought in for her, and by her will left to the minor plaintiff, a son of the same Reuben.

On the part of the defendant it was, amongst other things, contended that Mary Starrett was a feme covert, and actually intermarried with one Samuel Gibson, at the time of making the will: that the will was therefore void, and conveyed no right to the plaintiff.

On the first trial, the fact of marriage was controverted by the plaintiff, and a verdict obtained in his favor for $325. This verdict having been set aside, and a new trial granted, on the last trial, the fact of a marriage having taken place was not controverted by the plaintiff, but evidence was adduced on his part to show that the husband from the time of the marriage, in November 1812, up to the death of the said Mary Starrett, 1821, had never cohabited with her a day; that he abandoned her immediately, and enlisted as a common soldier shortly after; married another woman in Canada; never contributed to her support, nor placed property in her possession, nor interfered with her estate: that from the time of the marriage to her death she had the entire control of her property, and that property derived from sources independent of her husband, principally before coverture that she did not assume the name of her husband, but brought suits and transacted business in her maiden name, and was generally recognized and called by that name among all her acquaintances; that the said husband had resided several years in Philadelphia with another woman, followed wood-sawing, and had never interfered with the execution of the will, nor made any claim to the property; and it was contended, on behalf of the plaintiff, that property held under such circumstances, would be regarded in chancery as the separate estate of the wife, which she had a right to dispose of by will, independently of her husband: also, that the conduct of the husband, after her death, went to show an affirmance of the will by him. The court was, therefore requested, by the plaintiff's counsel, to charge the jury as follows:

1. If the jury believe, from the facts in this case, that Samuel Gibson abandoned or relinquished the rights which his marriage gave him over the property of his wife, she had a right to dispose of such property by will. And there is evidence in the cause, for their consideration, going to establish this point.

2. In order to establish the right of separate property in the wife, it is not necessary to prove a contract or agreement between husband and wife, nor the intervention of trustees; but it may be acquired by gift voluntary consent, or such a total abandonment as will warrant the inference of his assent.

3. The will of Mary Starrett, even though a separate property is not proved, may be affirmed by the acts of her husband.

4. The conduct of Samuel Gibson, both before and since the death of his alleged wife, as proved in this cause, goes to show his assent to her right to dispose of this property by will: and if the jury believe he did so assent, it is not competent for a mere stranger to say it is void.

Upon these points the court charged:

" 1 and 2. The control of the husband over the personal property of his wife, during coverture, is an important, positive, and well-established right; a right of which he cannot be deprived but by his own act and agreeement. He may agree that his wife may hold and enjoy, as her separate property, notwithstanding her coverture; and over such property she will have the absolute control, to dispose of as she pleases, either in her lifetime, or by will, at her death. This agreement that the wife shall hold separate property, may be in various shapes, by the husband, or between the husband and wife, before or after the marriage, and with, or without the intervention of trustees. But it is essential that the husband should do some act, he must make some agreement or arrangement to part with the control or dominion over the property, which by law belongs to him, and vest it as separate property of the wife; and this may be proved, like all other facts, either expressly or by circumstances. If there exists any evidence in this cause of such an act or agreement of the husband, either expressly or circumstantially, it would be laid before, and left to the jury. But I am of opinion that there is none. We are not to infer an agreement that the wife shall hold property to her separate use, without any interference or control on the part of the husband, from circumstances of another character, which may or may not exist with or without such an agreement on the part of the husband. I am of opinion, that the circumstances of living

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