Estate of Hicks, 7 Pa. Super. 274

Estate of Hicks

7 Pa. Super. 274 | Pa. Super. Ct. | 1898

Lead Opinion

Opinion by

Wickham, J.,

The decision in tins case turns on the answer to the question, whether the exception in the limitation act of March 27, 1713, so far as it relates to married women, was repealed by the Married Persons’ Property Act of June 3, 1887, P. L. 332, substantially re-enacted in the somewhat broader Act of June 8, 1893, P. L. 344. The exception or proviso in the statute of limitations prevents the statute from running against a feme covert until discoverture has come to her. The act of 1887 conferred on every married woman the right to acquire, use, and dispose of property, in possession or expectancy, together with all the rights, and subject to all the liabilities, incident to these broad powers, the same as if she were unmarried, and also provided, that, she should be capable of entering into any contract, and of suing and of being sued, in all respects as if she were a feme sole, and that joinder of her husband as plaintiff or defendant was no longer necessary. It was further declared, that “ husband and wife shall have the same civil remedies upon contracts in their own name and right, against all persons, for the protection and recovery of their separate property as unmarried persons.” The only property and contractual rights, not extended to the wife by this act, were those of conveying or mortgaging' her real estate, without her husband joining, and the becoming accommodation indorser, guarantor, or surety for another. All inconsistent acts were in express terms repealed.

*279The reasons appearing in the satisfactory opinion of the orphans’ court, as well as others which suggest themselves to our own minds, lead to the conclusion that a married woman, so far as regards her claims against all except her husband, must now sue within the time allowed her in case she were a feme sole. Section 4 of the act of 1887, reincorporated in section 3 of the act of 1893, gave her “ the same civil remedies upon contracts ” as if she were unmarried, neither more nor less. A man or a single woman must usually bring suit on a promissory note, or other contract not under seal, within six years after the cause of action has accrued, but it is in effect contended by the appellant that a married woman, although no good reason therefor can now be given, may wait half a century or more, the time depending on the length of her husband’s life, and then successfully sue, for interest and principal, on all the stale claims she may have laid aside to ripen into invulnerability through the almost unavoidable loss of defensive proof.

We must assume that the legislature, when it declared by the act of 1887 that a married woman should have precisely the same remedies as one unmarried, and announced the repeal of all inconsistent acts, intended to wipe out, to the extent already indicated, the exception in the act of 1713. To hold otherwise would give her, not only the remedial rights possessed by unmarried persons, but as well a special and now needless privilege to which, as a married woman, she was entitled before. Except •where the contrary is expressed, we cannot think it was the purpose, when practically removing all her disabilities, to put or leave her in a better situation than is occupied by members of the same class to which she now belongs. It would be a reproach to the law to have it said that of two neighboring merchants, each sui juris, and having equal’rights to make and enforce contracts, the remedy of the one should exist for only six years, while the other could bring suit, and recover, perhaps as late as the middle of the next century. Public policy and the duty to escape absurd results forbids any interpretation that would lead to such unjust and unequal consequences, if there is any reasonable way to avoid them.

The exception in the act of 1713, in favor of married women, was inserted because they might not sue without the consent and *280joinder of their husbands. That disability was removed by the acts of 1887 and 1893, and cessante ratione cessat ipsa lex.

“ Where the object and reason for which a statute was passed is removed by a later enactment, there is an implied repeal of the former statute: ” 23 Am. & Eng. Ency. of Law, 489. It cannot be disputed that the appellee, owing to the change in the law, is as fully discovert, so far as the right to bring suits against all, save her husband, is concerned, as though he were dead.

The English Statute of Limitations of 21 Jac. 1, chap. 16, sec. 3, contains an exception in favor of married women similar to that found in our act of 1713. In the Married Woman’s Property Act of 45 and 46 Victoria, chap. 75, sec. 2, passed August 18, 1882, it is provided, inter alia, that a married woman is capable of “suing and being sued, either in contract or in tort, or otherwise in all respects as if she were a feme sole.” It was held in Lowe v. Fox, Law Rep. 15 L. R. Q. B. 667, that the removal, by this act, of a married woman’s disabilty to sue, removed her discoverture in the sense wherein we are here considering it, and Weldon v. Neal, 51 L. T. N. S. 289, is to the same effect. In the latter case it was said, “ A married woman then was entitled to bring her action, within such times as were limited by the statute, after being discovert. In other words a married woman had her rights of action reserved until she was in a position to sue in her own name. Then came the Married Woman’s Property Act of 1882, subsec. 2 of sec. 1 of which, gave every married woman the right of suing either in contract or in tort, in all respects as if she were a feme sole.” In both of these cases it appears to have been assumed, that she was bound, after the act of 1882 went into effect, to bring her action within the times fixed by the general provisions of the statute of limitations. Authorities of the highest character, in this country, bearing on the meaning and effect of statutes like our own, sustain the same view: Hayward v. Gunn, 82 Ill. 385; Castner v. Walrod, 83 Ill. 171; Enos v. Buckley, 94 Ill. 458; Ong v. Sumner, 1 Cin. (O.) 424; Cameron v. Smith, 50 Cal. 303; Ball v. Bullard, 52 Barb. 141; Brown v. Cousens, 51 Me. 301; Kibbe v. Ditto, 93 U. S. 674. L. ed. 23-1005. The same conclusion is well expressed in Endlich and Richards on Married Women, 423.

*281It is but fair to say, however, that the contrary has been held in Mississippi, Arkansas and North Carolina: McLaughlin v. Spengler, 57 Miss. 818; State v. Smith, 83 N. C. 306; Hershy v. Latham, 42 Ark. 305, and that Ball v. Bullard, supra, was not followed in the later case of Clark v. McCann, 18 Hun, 13.

Being of the opinion that this dispute was rightly decided in the court below, the decree is affirmed and the appellant directed to pay the costs of the appeal. •

Concurrence Opinion

Smith, J.,

concurring:

When our statute of limitations of March 13, 1713, was enacted, the right of property in a chose in action owned by a woman, and her power to sue for it, were suspended and might be extinguished by her marriage. During coverture the husband alone could reduce it to possession, and having done this the property rested absolutely in him. Such was the law also as to a chose accruing to her during coverture, except with respect to a personal tort. The wife had neither a right of property that would sustain an action nor capacity to sue. The husband could sue alone for her choses accruing during coverture, or at his election the wife might be joined as plaintiff. The wife might be joined, also, in suits for choses owned by her while sole, but on the question whether this was necessary the cases do not seem entirely consistent: Hayward v. Hayward, 20 Pick. 517; Cummings v. Cummings, 143 Mass. 340; Wintercast v. Smith, 4 Rawle, 177; Hertzog v. Hertzog, 29 Pa. 465; Tritt v. Colwell, 31 Pa. 228 ; Grebill’s Appeal, 87 Pa. 105. The criterion commonly laid down is that “ Where the action will survive to her, she may be joined; where it must necessarily survive to her, she must be joined: ” 2 Kent’s Com. 131; 7 Watts. 113. These rights were exceptional and are not material here, since the wife could not require the husband to sue, either with or without joining her, and the joinder gave her no right to the money recovered if the husband chose to take it. If the husband died without having reduced the wife’s choses to possession, her right of property and of action revived. It was because of this modification of the wife’s ownership of her choses in action, and her inability to reduce them to possession during coverture, that, as to choses accruing or maturing during coverture, an exception in *282the statute saved to the wife her remedy by action in the event of the restoration of her right of property and her capacity as a suitor by discoverture.

The act of April 11, 1848, abolished the common law effect of coverture on the wife’s property rights, except as to the husband’s tenancy by the curtesy, and section 39 of the act of April 25, 1850, provided that the remedy by suit should be in the name of husband and wife, to the use of the wife, with the recovery for her exclusive benefit. By the acts of February 22, 1718, and May 4, 1855, a wife might, under certain circumstances, acquire a feme sole trader’s rights of property and of action; and by the acts of April 11, 1856, and June 11, 1879, she might in certain cases sue alone, and even sue her husband. The acts of 1887 and 1893 gave her the right to sue alone as if unmarried, except that she might sue her husband only for certain causes. The effect of these acts has been to restore to the wife the right of property and the capacity as a suitor which, as the law stood at the enactment of the statute of limitations, were suspended or extinguished by marriage. The right of action which, by the saving clause of the statute, was preserved to await discoverture, has by the acts of 1887 and 1893 been fully secured to her during coverture. The exception no longer serves any beneficial purpose, since nothing remains to be saved by it. The qualified remedy which it provided has been superseded by the absolute remedy given by these later statutes. A postponement of the wife’s right of action until discoverture is inconsistent with her right to sue during coverture. Being founded on a disability no longer existing, its retention cannot be deemed within .the legislative intent as indicated by the acts removing the disability.

Judgment affirmed.