Duncan's Appeal

| Pa. | May 29, 1862

The opinion of the court was delivered, by

Lowrie, C. J.

We feel very sure that no fraud W'as intended here, and very probably the arrangement was very discreet and prudent; but it W'as very improper to make it without the consent of the intended husband. Common candour forbids that so important a change in his intended wife’s circumstances, and in her power over her estate, should be made without his consent, and equity sternly condemns it as a fraud upon his just expectations. This principle of equity has stood the test of experience too long to be open to dispute now.

Nor does our Married Women’s Act of 1848 at all affect the question. It prevents the marriage from operating as a transfer of any of the wife’s property to the husband, and saves it for herself. The plaintiff had therefore a right to suppose that he was marrying her with all her legal power over her estate, whereas by this arrangement it was secretly slipped into the hands of trustees, and out of her control, just before the marriage was consummated. This is not just or equitable treatment of the husband. A fraud no greater than this would avoid any other contract than that of marriage; but as this cannot be avoided, equity avoids the contracts that are in fraud of it.

It was no ratification of the wrong done, or estoppel of his right to complain of it, that the plaintiff, after the marriage and before knowledge of his rights, acted as agent under the deed of trust, for no one was misled by that to his injury. We find nothing in the case to support the arrangement, or to estop the plaintiff from complaining, and nothing erroneous in the form of the proceeding.

Decree affirmed, at the costs of the appellants.