Towers v. Hagner

• Decision Date: 02 January 1838
• Citation: 3 Whart. 48
• Parties: TOWERS v. HAGNER.
• Court: Pennsylvania Supreme Court

3 Whart. 48

TOWERS v. HAGNER.

Supreme Court of Pennsylvania.

January 2, 1838

1. A married woman having a separate estate may give or lend the income of it, if at her disposal, to her husband as to any other person. When it is uncertain whether money received by such husband was intended as a gift or a loan, the jury in an action against the husband's executors may take into consideration among other circumstances, evidence given to prove that harmony did not always exist between the husband and wife.

2. Where money has been lent by a wife, having a separate estate, to her husband, the statute of limitations does not begin to run against the debt, until the death of the husband.

3. Interest should be allowed on such debt, in an action against the executors of the husband, from the time of his death; and where there has been coercion or other improper conduct on the part of the husband, the jury may give interest for the time before his death.

4. Where on the trial of an action against an executor on an alleged assumption of his testator, the defendant's counsel admitted that certain manuscript account books offered in evidence by the plaintiff's counsel, were in the hand-writing of the testator, it was held that this admission did not estop the counsel from questioning the authenticity of a particular item, in his address to the jury.

5. Where an action was referred to arbitrators, under the act of 1810, and on the trial before the arbitrators the plaintiff was offered as a witness, having assigned her interest, and the sum of $50 was fixed by the arbitrators as the amount of costs, and paid by her to one of the arbitrators, and she was then examined as a witness; but no record was made of the payment of this sum, and the arbitrators found for the plaintiff, with costs; and the money paid by the plaintiff was applied towards the payment of the arbitrators' fees and other expenses of the arbitration, but was inadequate for the purpose, and after-wards the plaintiff died; it was held that the notes of her testimony before the arbitrators could not be read in evidence on the trial in court, although the full amount of the remaining costs was paid in during such trial.

THIS was an action of assumpsit brought by Mary Towers against Charles Hagner, executor of the will of John Towers, her deceased husband, to recover certain sums of money alleged to have been lent and advanced to the testator in his lifetime or to have been received by him to her use.

On the trial before KENNEDY, J., at the Nisi Prius, in November 1837, the case appeared to be as follows:

Previously to the marriage of Mrs. Towers with the testator, which took place in 1823, a settlement was made of her property by a conveyance to a trustee, in trust, for her separate use during her life, and after her death, to her children by a former husband named Tucker. Capt. Towers, the intended husband, was a party to this conveyance. The property consisted both of real and personal estate.

Capt Towers died in May, 1831. This suit was commenced to the December Term following; and was shortly afterwards referred to arbitrators, under the act of Assembly of 1810. While the cause was depending before the arbitrators, Mrs. Towers assigned her interest in the claim to her son, for whose use the action proceeded. She was then offered as a witness, and being objected to on the score of her liability to costs, the arbitrators were asked to fix a sum to be paid by the plaintiff to cover the costs. They fixed $50, which sum was handed by, or on behalf of the plaintiff, to one of the arbitrators; after which she was examined. This sum ultimately turned out to be inadequate for the payment of the costs of the suit. The arbitrator retained the money until the filing of the award, which was in favour of the plaintiff, with costs; upon, or after which, the arbitrator asked the plaintiff's counsel to receive it, and apply it towards the expenses of the arbitration. The plaintiff's counsel accordingly received it, and applied part of it to the payment of the arbitrators' fees, and the remainder towards the expense of the room. The fact of the payment of the $50 during the arbitration, did not appear upon the minutes of the arbitrators, or the records of the court. The defendant appealed from the award. Mrs. Towers died after the appeal, and her executors, Henry M. Tucker and William Tucker, were substituted as plaintiffs.

On the trial, the plaintiffs gave parol evidence to show that Captain Towers had obtained money from Mrs. Towers on different occasions, sometimes by violent treatment and severe measures; and it appeared clearly that they lived together very unhappily. Certain MS. cash-books kept by Captain Towers were also produced, containing entries of cash received by him from Mrs. Towers, and also of cash paid to her. The handwriting of Captain Towers to these entries was admitted by the defendant's counsel.

The plaintiff's counsel then offered in evidence his notes of the testimony of Mrs. Towers, taken at the hearing before the arbitrators, and sworn to be the substance of her deposition. This was objected to on the part of the defendant, and the learned Judge rejected it on the ground that it did not appear by the report of the arbitrators, or by the record, that the costs had been paid; and because the money alleged to be deposited to cover the costs, was not paid to the prothonotary on the filing of the award, or deposited with him, or in court, at any time; but according to the award, the defendant was to pay the costs of suit.

On the part of the defendant, parol evidence was given to rebut the inference that money was obtained by Captain Towers from his wife by duress. Certain entries in cash-books of Captain Towers, which had been produced under a notice from the plaintiffs' counsel, were offered in evidence to prove payments to Mrs. Towers, but objected to on the part of the plaintiffs, and rejected by the Court.

Judge KENNEDY charged the jury in substance as follows:

" By marriage, without the intervention of any agreement, the husband acquires a right to the possession of his wife's real estate, and an absolute right of property to all her personal estate, which includes her money, or her right to claim money, so far as he shall possess himself of the same. But although the husband, by the mere operation of law, becomes thus entitled to the money belonging or owing to his wife, as well as her other personal estate--consist of what it may--yet it is competent for the parties, before marriage, by an agreement made between them, usually called an agreement, or articles of marriage-settlement, to make the law otherwise; so that, notwithstanding this marriage in contemplation shall be celebrated and take place, the wife shall continue to be, in effect, the absolute owner of all her estate, both real and personal, and to continue the same control and power over it, as if she remained unmarried--and that the husband shall have no right or claim whatever to it, unless she shall give it to him. Whether such agreements be more or less favourable to matrimonial happiness, is not a question which either the court or jury have a right to inquire into, and settle here. It is sufficient to know that the law sanctions and approves of them; and that being the case, it is the duty of courts and juries to carry such agreements into effect, according to their tenor. The husband is just as much bound by such an agreement, as any other that he could legally have made with any other person. Now according to the legal effect of the agreement made between Captain Towers and his wife before marriage, which has been given in evidence to you, Mrs. Towers continued to be the owner in equity of her estate the same after marriage as before. Her husband had no right whatever to her money, nor to the rents or profits of her real estate; all still belonged to her, and she had an unquestionable right to dispose of them as she pleased. She might have given them to a stranger, or to whom she pleased, or she was at liberty to give them to her husband. She had a right also to lend her money to whom she pleased; to her husband if she pleased; and if she did so, he was as much bound to repay it to her, as if he had borrowed it of a stranger. So if Captain Towers received any of her rents without her consent or authority, he would be bound to account for it, and pay it to her. If, however, he received her rents by and with her consent, while they lived together in peace and harmony, and used them without any complaint or objection being made by her for years, the presumption would be, that such rents, so received, were a gift from her to him; and if so, his estate would not be accountable. This same rule would also apply to the receipt of interest on money belonging to her, and standing out upon loan; but if he had collected or received the principal, or any portion of it, though with her knowledge, no presumption of its being a gift would arise from that circumstance. It ought to appear distinctly that she had assented to his receiving the principal as a gift; otherwise he would be liable for it. With the exception, however, of $60 received of David M'Clure, it does not appear from the evidence, that he ever received any rents belonging to his wife, nor at any time interest or money due her. If this $60, received of M'Clure, was Mrs. Towers's rent, and she was acquainted with his having received it, and acquiesced in it, without any complaint or objection, while at the same time she was living in peace with him, the presumption would be that she was content that he should have it as a gift. There is certainly no evidence given going to show that she was opposed to it, but whether she was living

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