Moninger v. Ritner , 104 Pa. 298 ( 1883 )

Mr. Justice Gordon

delivered the opinion of the court, November 5th 1883.

The plaintiff below claims title to the property in controversy by virtue of his right as tenant by the curtesy in the estate of his deceased wife, Ellen Ritner, who died some time in July 1880. As she was seised of the lot in dispute during her coverture, were there nothing else in the case, his right to have and hold it, during the term of his natui’al life, could not be successfully controverted. But on part of the defence there was an offer made to show that, on the petition of Ellen Ritner, setting forth the fact that her husband had, without cause, willfully abandoned her, the court of Common Pleas of Washington county had, in pursuance of the Act of the 14th of May 1855, made its decree, on the 21st of October, 1873, constituting her a feme sole trader, and had issued to her a certificate to that effect. That being thus fully empowered to dispose of her property as.though she were sole, she, on the 29th of January 1871, conveyed the lot in dispute to David Aiken in fee, who afterwards conveyed to George W. Moninger, the defendant. This offer was refused, and the jury were instructed to find for the plaintiff. In this interpretation of the law, and disposition of the case, we cannot agree with the court below.

Taking that offer as proved, and we cannot see why it should not determine the controversy in favor of the defendant.

The Act of 1855 is so plain, positive and unambiguous in its terms, that no one need, for one moment, hesitate concerning its design and intention. It secures to the deserted wife not merely the rights and privileges of a feme sole trader, under the Act of 1718,- but it also confers upon her the absolute and unqualified right to dispose of her own property, real and persona], as to her may seem best, and further provides, that in case she dies intestate, such property shall pass to her next of kin as though her husband were previously dead. About the fact therefore, that Mrs. Ritner had the right, so far as it could be conferred upon her by this statute, to sell the property in question, unincumbered by her husband’s curtesy, there can be no doubt. Moreover, of her power so to sell and dispose of this property, the certificate issued to her by the Common Pleas, is, by the sixth section of the Act- above recited, made conclusive evidence, and so continues to be until it is revoked by the authority from which it emanated. It follows, that the court below, in ruling out the offer of the defendant, disregarded a plain and positive injunction of the General Assembly. But the counsel for the plaintiff below interposes the plea that Ritner, having been married to his wife, Ellen, before the passage of the Act of 1855, had such a vested right, not only in the property which she then had, but also in that which she might, afterwards acquire during their marriage, that the Act of 1855 was, as to him, unconstitutional and void. In other words, such was the inherent power of the marriage contract, that, without regard to the performance of that contract on his part, the peculiar rights acquired at its inception could not be abridged, altered or modified by any power short of his own will. But the statement of this proposition is its own refutation. The very premise on which the Act is founded is that the marriage contract has been violated; that the husband has deserted his wife and refuses to support and maintain her. It is, therefore, a curious travesty on the constitutional power’s of this Commonwealth to say that the legislature can make no provision for the support of an abandoned wife, if such pro-' vision happens to impinge upon some marital right of the derelict husband. But independently of the arguments which may be drawn from the nature of, and duties involved in, the marriage contract, in favor of the constitutionality of the Act of 1855, there is, in fact, no foundation on which to rest the attempted justification of the judgment of the court below. Ritner’s right to curtesy in his wife’s estate was no part of the marriage contract, but it resulted from the operation of statutory enactments existing at the time of her death. This point was expressly ruled, in reference to a wife’s dower, in Melizet’s Appeal, 5 Har. 449, and we may take it for granted that no one will insist that the right of curtesy is superior to that of dower. In that case it was contended that the Act of 1818 was unconstitutional, in that the rights, of the wife are fixed and vested at the time of marriage, and that this Act essentially changed and interfered with those rights as well as with those of the husband.

But, in answer, it was objected, that, in this Commonwealth, laws had, from time to time, been passed altering the statutes of distribution, and the manner of making of wills, and that such laws had always been considered sound and'good, if in operation at the time of the decedent’s death, without regard to whose inchoate interests they might affect. It was further said, that the legislature might, at its discretion, altogether abolish the common law right of dower, and repeal the statute of wills. But this doctrine has peculiar force when applied to the facts in the case in hand, and the error of the court below becomes all the more obvious. Mrs. Ritner’s title to the property in dispute had no existence until after the passage of the Act of 1855, and until the acquisition of that title Ritner had no right in the premises inchoate .or otherwise. The Act of 1855 could therefore, not interfere with Ritner’’s vested rights in and to the subject matter of this controversy, for in it he had no such rights. On the other hand, whatever rights he may have had therein he held in subjection to the then existing laws. Whether, then, we adopt the full text of the case above cited or not, the Act of 1855 certainly is, as to the plaintifE’s right, constitutional and of full force, and ought so to have been regarded in the court below.

Our attention has been called to the case of Ayetsky v. G-oery, reported in 2 Brewster 302, as ruling the contention in hand in favor of the judgment below. But as the facts of that case are not given, it is impossible to say whether it has any applicability to the case before us or not. If, indeed, the counsel for the plaintiff in error has properly stated the facts upon which that case was based, it certainly does not, as to the present contention, support the argument of the counsel for the defendant' in error.

The judgment of the court below is now reversed and a new venire is ordered.