52 N.J. Eq. 637 | New York Court of Chancery | 1894
The object of this suit is to establish an equitable debt and enforce its payment. The complainant rests his right to the relief he asks on the following facts: Allan Osborn died in March, 1893, leaving a will which has been admitted to probate, and by which he directs that all his just debts should be paid as soon as could be conveniently done after his death. For several weeks prior to his death, Mr. Osborn was so weak and helpless that he was unable to sign his name or to give any attention to any business. Before becoming so, he was always possessed of ready money and provided well for his family, and it was his • custom to pay cash for his family supplies. A short time prior to his death, the funds which he had placed in the hands of his wife, became exhausted, and he being unable, in consequence of his helplessness and sickness, to provide additional means, and his wife, being in need of money for the support of his family, .applied to the complainant for a loan of $100 to be expended for that purpose. The loan was made and the money was expended in the purchase of such things as were necessary for the support of Mr. Osborn’s family. Since Mr. Osborn’s death the complainant has requested the executors of his will to pay him, and they have refused. This suit is brought to compel payment. The defendants move the dismissal of the bill, on the ground that the case made by it does not entitle the complainant to relief.
, The complainant contends that, as the money which he loaned to the testator’s wife was spent for the support of the testator’s family, he has a right, according to a well-settled rule of equity jurisprudence, to be subrogated to the rights of those who provided the necessaries, and to have his debt enforced in equity •against the testator’s estate as they might have done at law, if the money which he loaned had not been used to pay for them. In England it is settled by authority, both ancient and modern, that when a husband has deserted his wife without making provision for her support, and a third person advances money to her which she uses to obtain necessaries, an equitable debt is •thereby created which may be enforced against the husband.
Jenner v. Morris was decided by Vice-Chancellor Kindersley in 1860 (1 Drew. & S. 218), and on appeal by Lord Campbell and Lord-Justice Turner in 1861. 3 De G., F. & J. 45. In this case it appeared that a husband had deserted his wife without making any provision for her and without making any imputation of misconduct against her. After the desertion the wife’s brother advanced money to her, which she used to obtain necessaries, and he also paid for necessaries supplied to her by tradesmen. On the question whether or not, under these facts, the husband was liable, no doubt seems to have been entertained. Harris v. Lee was affirmed and followed, and May v. Skey overruled. In answer to an objection made by counsel, that Harris v. Lee was a very old case and did not appear to have been acted upon in modern times, Lord-Justice Turner remarked, in considering old authorities, it must be borne in mind that the decrees of the court very often furnish the very best evidence which can be had of the extent of its jurisdiction and of the principles by which it is guided, and that in disregarding the older decisions there is great danger of breaking in upon its-principles. Deare v. Soutten, L. R. 9 Eq. Cas. 151, was decided by Lord Romilly, master of the rolls, in 1869. In this, as in all the other cases where the husband was adjudged liable, it appeared that the defendant had deserted his wife, leaving her unprovided for, and that the plaintiff had advanced money to her which she had used to obtain necessaries. On the authority of Jenner v. Morris, the husband was held liable.
The principle established by Harris v. Lee was recognized by the supreme court of Pennsylvania, in Walker v. Simpson, 7 Watts & S. 83, and the supreme court of Connecticut, in Kenyon v. Farris, 47 Conn. 510, after a thorough examination of all the authorities, adopted it as an unquestionably sound rule of equity jurisprudence. The reasoning of the court in this last case appears to me to be more convincing than that advanced in any of the prior cases. Stated in substance it is to this effect, that it can make no difference to the husband, whether he is held
By force of the principle under consideration, it is manifest that the husband’s liability rests noton his misfortune, but,on his fault — on his refusal or failure to do his duty to his wife.. It has no other foundation. It is only in cases where he has deserted or abandoned his wife, without making provision for her support, that he has been held liable for money advanced. That is the utmost extent to which his liability, by force of this-principle, has as yet been carried. The bill shows that when the loan in this case was made, the defendants’ testator was unconscious or in a state of complete disability. He was so sick, weak and helpless as to be incapable of doing any business of any kind. How, unless pure misfortune, unmixed with fault of any kind, confers authority upon a wife to pledge the credit of her husband for money to buy necessaries, the wife’s act in this case was wholly unauthorized and imposed no liability on her husband. To hold a husband liable under such circumstances. will unquestionably obliterate all distinction, in cases of this character, between fault and misfortune, and extend the principle under consideration to cases entirely foreign to both its letter and its spirit.
The bill must be dismissed, with costs.