40 Conn. 596 | Conn. | 1873
JUDGE SEYMOUR’S OPINION.
These suits were submitted to me as arbitrator. The facts so far as they hear upon the controverted points of law are as follows:
Mr. Newell is brother of Mrs. Cooke. He was administrator on their father’s estate. Mrs. Cooke’s distributive share of the estate was sold by Mr. Newell and the proceeds of the sale were by consent of all the parties left in his hands.
In the action by Mr. Cooke as trustee he seeks to recover these proceeds from Mr. Newell.
In the action against Mr. Cooke Mr. Newell seeks to recover among other things for services rendered and for money expended as an attorney in the defence of Mrs. Cooke against three petitions for divorce brought by Mr. Cooke against her.
Mr. Newell also claims, if he cannot in his action at law recover for these services and expenses, that Mrs. Cooke’s property left in his hands as before stated has been appropriated by him in her defence in the divorce suits, and that such appropriation is lawful and a good accounting, by way of answer to Mr. Cooke’s suit as trustee.
The petitions for divorce were all successfully defended. The services rendered by Mr. Newell were valuable to Mrs. Cooke and in fact indispensable for the protection of her good name and for the preservation of her rights as a married woman.
In regard first to Mr. Newell’s action against Mr. Cooke. I regard it as settled law in Connecticut that no recovery can be had of the husband for these services and expenses.
In Shelton v. Pendleton, 18 Conn. R., 421, the wife brought her petition for divorce, which was granted. Her counsel sought to recover of her husband his fees and disbursements, and it was decided that he could not recover.
In divorce cases where the wife is respondent the court before which the petition is pending makes an allowance to the
It is true that in 31 Conn. R., 303, Munson v. Washband, some doubt seems to be cast upon the authority of the case of Shelton v. Pendleton in its bearing on this question, but 1 think the profession has accepted Shelton v. Pendleton as settling the law in Connecticut, for cases are daily occurring where counsel are employed by married women in divorce suits and no effort to my knowledge has been made since that case was decided to charge the husband beyond the allowance ordered by the court.
Mr. Newell claims, in the second place, that the property of Mrs. Cooke in his hands may properly be applied to meet the expenses incurred by her in the divorce suits. Property held by the wife “to her sole and separate use” may without doubt be subjected by her sole act to meet these and similar expenses for her benefit. But the property in Mr. Newell’s hands came to the wife during coverture as the proceeds of her share of her father’s intestate estate. The status of this property depends therefore upon the statute on that subject. It is by the statute vested in the husband “ in trust for the wife.” If this were all, these words might admit of being construed as “ in trust for the sole and separate use of the wife,” but the next section of the statute provides that the husband shall be entitled to the rents, profits and interest of such estate during his life.
The question resolves itself into this — whether the wife can by her own act charge these funds with the expense of a contest with her husband.
At common law the funds so far as derived from personal estate would vest absolutely in the husband; so far as derived from the sale of real estate he would at common law have in it at least a life estate. The statute limits the rights of the husband in his wife’s property, but does not deprive him of
[A portion of the award which deals only with certain questions of fact is omitted.]
O. S. Seymour.
Litchfield, July 20th, 1874.
