41 Conn. 551 | Conn. | 1874
A married woman borrowed money of the appellee, with which she purchased real estate, taking a deed in her own name. No note or other written obligation was given. She died. Her husband, as administrator, inventoried the real estate, and represented her estate insolvent. The claim for money loaned was allowed by the commissioners, and the administrator appealed. The Superior Court affirmed the doings of the commissioners, and the appellant moves for a new trial, and files a motion in error.
The equities of this case are very strong, and the claim should be allowed unless some inflexible rule of law absolutely forbids it.
It is claimed that the case is not within the act of 1869, because she was not carrying on business, and did not contract in writing; that the act of 1872 does not apply; because this suit was pending when that act was passed, and it is provided that it shall not affect any suit then pending; and that it is not a contract binding upon her in equity, because it is not a contract relating to estate which was to her separate use.
It must be conceded that the act of 1872 has no direct bearing upon the case, and that no action at law could be maintained on this demand under the statute of 1869.
The question whether it is a claim which equity will recognize and enforce still remains.
The appellant’s counsel rely upon the case of Butler v. Buckingham,, 5 Day, 402, decided in 1813. It was there held that the estate of a married woman which could be affected by her contracts, was “ such estate only, be it real or personal, as is settled on her for her separate use, without any control over it on the part of her husband.” It is strenous
The rights tif married women in respect to their property were very different then from what they are now. The husband then had a life estate in her real property, which might be disposed of or taken for his debts. All her personal property vested absolutely in him, was subject to his debts, and he might otherwise dispose of it without her consent. AH the property over which she could legally have any control, was that which was settled on her for her separate use. She could make no contract for the sale or purchase of real estate, except in the manner provided by statute, which could be enforced in law or equity. Personal property she could neither acquire nor hold, consequently she could make no contract in respect to that. In that state of things it was eminently befitting and just that whatever right she had should be carefully guarded.
It was • necessary, in such cases, to resort to a court of chancery because of her total inability at law to make any contract, and because the property, which was the subject of her- agreements, was usually, if not always, trust property. But even then the principle was fully recognized that the right to own and possess property carried with it a limited right to dispose of it; and that these rights carried with them corresponding obligations.
Now by statute the law is materially changed. -Her personal property vests in her husband in trust for her. It cannot be disposed of without her consent, and the use of it is secured to her and her family during life, and at his death, if she survives him, it goes to her; and if he survives her, at his death it goes to her heirs. In like manner his interest in her real estate is exempt from execution, except as to one class of debts, and in case he abandons her all her property immediately vests in her, free from any control by him.
She may also carry on business as a feme sole, and make any contract on account of such business, may make promissory notes or other writings for the benefit of herself or her estate which will be binding, and, with respect to many of
The act of 1869 was in force when this contract was made. It provides that “ whenever any married woman shall carry on business, and shall incur any debt or obligation on account of the same, or shall execute any promissory note or other instrument in writing, either alone or jointly with her husband, for the benefit of her sole estate, or the benefit of the joint estate of herself and husband, she shall be liable for any such debt or obligation, and upon such note or instrument, and may be sued either alone or jointly with her husband, and her property may be taken in attachment or execution as if she were unmarried.”
This statute does not authorize an action at law on this demand, but it does not follow that there is no remedy in equity. The statute clearly recognizes her right and power to make contracts for the benefit of her estate. If made in the manner indicated by the statute, a legal liability arises. If not so made, still, if her estate receives the benefit of the contract, it is equitable that it should be liable for the debt thereby created. The principle which lies at the foundation of Butler v. Buckingham, when applied to the changed condition of our law, will fully sustain such a liability. It was not the intention of the legislature to prohibit a contract, which was in substance what the statute contemplated, merely because some formality required was omitted. The statute was designed chiefly to give an additional and more simple remedy, and not to limit or enlarge the power of a married woman over her property.
That is not only a sound construction of the statute, but it is in harmony with the law as it formerly existed, that property owned by a married woman, the use of which the law secured to her, and which was to some extent subject to her control, should under proper limitations be subject to her contracts.
Moreover this view of the law is the one which prevails
The validity of such claims has been repeatedly recognized by this court. This case is distinguishable from the case of Langenbach v. Schell, 40 Conn., 224, only in the circumstance that there a note was given, and here there is no writing. But if we are right in our construction of the statute of 1869, that affects the remedy only, and not the validity of the claim.
In Wells v. Thorman, 37 Conn., 318, husband and wife carried on business in her name and with her capital. In 1868, before the passage of the act of 1869, she contracted for the alteration and repairs of a building which she had leased. The repairs were for the advantage of her business, and therefore benefited her estate. It was held that her personal property, which was benefited by the repairs, was liable in equity for the expense.
In Buckingham v. Moss, 40 Conn., 461, the plaintiff’s intestate furnished supplies to the defendant, a married woman, living with her husband, and who owned a farm and had a family. Credit to the husband was refused. It does not appear that there was any note or other written obligation. In an action at law, under the act of 1872, it was held that the defendant was liable. The court held distinctly that the act of 187 2 was not intended to create and did not create any new liability. It imposed no duty, no obligation, which did
In Jennings v. Davis, 31 Conn., 134, a note had been given payable to a married woman for the price of her land sold. Afterwards the maker did work on buildings belonging to her, under an agreement with herself and her husband that his bill of work should bo indorsed on the note as part payment of it, which however was not done. In a suit between the representative of the husband and the representative of the wife, it was held that the note belonged to the wife’s estate, but that the bill of Avork ought to be applied in part payment of it.
Thus it will be seen that we are not now establishing a new principle, but are folloAving recent decisions in applying well-established and familiar principles to the existing state of things.
A court of probate in this state, as to all matters within its jurisdiction, is a court of equity as well as a court of law, and commissioners on insolvent estates take cognizance of equitable as well as legal claims.
The claim in question was properly allowed, and there is no error in the record, and no ground for granting a new trial.
In this opinion the other judges concurred; except Park, C. J., who dissented.
