135 A. 617 | Pa. | 1926
Argued November 24, 1926.
This appeal is by the husband from a decree declaring his wife a feme sole trader under the Act of May 28, 1915, P. L. 639. The pleadings and meagre testimony disclose that the parties were married in 1895 and thenceforward resided in her home in Philadelphia, where petitioner continues to reside, and from which the husband departed in 1917. While the petition avers a malicious desertion on his part, the answer, which as to that must be accepted for there is no countervailing proof, avers a separation by mutual consent. He contributed to her support for two years thereafter and then ceased to do so. Seven years later, in 1926, she instituted this proceeding. It is agreed that all marital relations between them had ceased, at least, for the seven years during which he neither gave nor, so far as appears, was asked for any support. His answer avers the separation resulted from disagreement over financial matters, but states no facts, and the record presents the bald question whether a wife living apart from her husband, by mutual consent, and receiving no support from him, is entitled to the benefit of the act. The lower court, in our opinion, rightly answered in the affirmative. To bring a case within the statute, the parties must have lived apart and separate and all marital relations between them ceased for one year or more; and it must appear that during that time "the husband . . . . . has not supported his wife, nor their child or children, if any they have," nor contributed toward their support. All of which here appears. The statute does not require that the separation result from the husband's desertion and is not capable of such construction. True, we held in Graver's Petition,
The decree is affirmed at the cost of appellant. *56