Whiting v. Whiting

• Court: Maine Supreme Court
• Writing for the Court: SAVAGE, C. J.
• Citation: Whiting v. Whiting, 114 Me. 382, 96 A. 500 (Me. 1916)
• Decision Date: 31 January 1916
• Parties: WHITING v. WHITING.

96 A. 500

114 Me. 382

WHITING

v. WHITING.

Supreme Judicial Court of Maine.

Jan. 31, 1916.

Report from Supreme Judicial Court, Hancock County, in Equity.

Bill in equity by Theresa L. Whiting against Samuel K. Whiting. On report on the bill and demurrer thereto. Demurrer overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

Fulton J. Redman, of Ellsworth, for complainant. Deasy & Lynam, of Bar Harbor, for respondent.

SAVAGE, C. J. This bill in equity la brought by a wife against her husband. She alleges in her bill that her husband, being about to execute and deliver a deed of certain of his real estate, requested her to sign the deed in release of her right and interest by descent. She alleges further that the defendant, "with intent to deceive the plaintiff in regard to the contents of said deed and to induce her to sign the same, falsely and fraudulently stated and represented to the plaintiff that the said deed had reference" to two certain described lots, and that it did not "refer to or in any way affect" a certain other lot, described in the deed as the "First Lot," that relying upon these statements she signed the deed, as requested, that she did not know the true contents of the deed, that the defendant did know that the defendant induced the plaintiff to sign said deed in pursuance of a fraudulent scheme to deprive her of her interest and right by descent in the said "First Lot," and that the value of the plaintiff's interest in that lot was approximately $0,000.

The bill seeks to have so much of the fund received by the defendant from the sale of the real estate in question as is equivalent to the value of the plaintiff's right and interest therein, of which she claims to have been defrauded, declared to be a trust fund, and that the defendant be ordered to account to her for the same.

The defendant demurred, and the case comes before this court on report on bill and demurrer.

There is an infirmity in the bill in that there is no express averment that the "First Lot" was included in the deed, but no point is made in argument on this ground. Nor is it contended that the allegations in the bill, which upon demurrer are to be taken to be true, do not state a case of fraud within the equity jurisdiction of the court, if the parties were not husband and wife. The defense, as stated in the brief, "rests upon the proposition that the doctrine of marital unity —oneness—has not been even in equity so completely abrogated as to authorize suits by one spouse against the other involving strictly marital rights in property." The sole question argued, and to be considered is, whether a wife has a remedy in equity against her husband for wrongs and frauds such as are alleged in the bill.

It is well settled that a wife cannot maintain an action at law against her husband. Perkins v. Blethen, 107 Me. 443, 78 Atl. 574, 31 L. R. A. (N. S.) 1148; Copp v. Copp, 103 Me. 51, 68 Atl. 458. It is equally well settled that, because there is no remedy at law, their conflicting rights touching property may be adjusted in equity. Fitcher v. Griffiths, 216 Mass. 174, 103 N. E. 471. This general proposition is not denied, but it is contended by the defendant that it is limited to property rights growing out of an antenuptial settlement, or relating to separate property, and does not include such rights as grow out of and depend upon the marital relation alone. And the inchoate interest which a wife has in her husband's real estate is claimed to be dependent only on the marital relation.

The discussion will be clarified if we state first what is a wife's interest in her husband's real estate. In this state the common-law right of dower has been abolished. Laws of 1895, c. 157, § 2; R. S. c. 77, § 8. In lieu thereof, a larger and more valuable interest is given to the wife. The husband's real estate descends, "if he leaves a widow and issue, one-third to the widow. If no issue, one-half to the widow. And if no kindred, the whole to the widow." R. S. c. 77, § 1. This right of the wife is called in the statute her "right and interest in the real estate." Upon his death, the fee in the real estate descends to the widow, in the proportion prescribed by the statute. Longley v. Longley, 92 Me. 395, 42 Atl. 798. During his lifetime her right is, in a sense, inchoate, and is contingent upon her surviving her husband. But it is an interest. The statute terms it such. It is a valuable interest. It is an interest that she cannot be deprived of without her consent, without compensation. It is an interest which can be valued. If she refuses to release her interest by joinder in a deed with her husband, her interest may be determined, and the value thereof ordered paid to her. R. S. c. 77, § 17. It has been held that she has such an interest during her husband's lifetime that she is entitled to redeem from his mortgage, though she had therein released to the mortgagee her right and interest by...