McGean v. McGean. were both residents of the city of Brooklyn, New York; that they spent the night of their wedding day together at a hotel in that city; that the next day they separated by mutual consent, the arrangement being that the petitioner should return to, and remain with, her mother until the month of November following; that, during that period, the husband should reside in "the country," and that when he should receive his share of his father's estate (which he expected would be in the month of November) the appellant and respondent "would begin housekeeping." On the 1st day of October, less than three weeks after her marriage, and before the agreed upon time for the resumption of marital relations by the parties had arrived, the petitioner removed to Jersey City, in this state, with the avowed purpose of acquiring such a residence here as would enable her to obtain a divorce from her husband on the ground of desertion. On the 2d day of October, 1899, just two years after the removal of the petitioner to this state, she filed her petition in this suit. In order to be entitled to a decree, therefore, the burden was upon her to show that, between the 10th day of September, 1897, when she and her husband separated temporarily by mutual consent, and the 1st day of October, when she had made up her mind to acquire a residence in the State of New Jersey for the purpose of obtaining a divorce from her husband, the latter willfully deserted her, and that, from that time until the filing of the bill, the desertion was continuous and obstinate. The following are the only facts appearing in the testimony which show the character of the relations of these parties during the period mentioned: On the Saturday night after their wedding the defendant called upon the petitioner at her mother's house. The petitioner, in her testimony, speaking of this visit, says: "We had playing and singing, and everything was pleasant. He stayed until about eleven o'clock, and said he would call the next day." It further appears that he did call the next day, but did not see the petitioner, as she sent word to him by her. sister that she was too sick to see him. The case is silent as to what occurred, or was said, if anything, between the defendant and the petitioner's sister, on this occasion, bearing upon the question of the defendant's desertion of his wife. It further McGean v. McGean. appears that, about two weeks after making this call, the defendant wrote a letter to the petitioner, which she received and answered. There is no other testimony in the case upon the subject of the relations of these parties to one another during the time mentioned. It is manifest, therefore, that, if there is anything in the proofs upon which the conclusion can be based that the defendant willfully deserted the petitioner before the 1st day of October, 1897, it must be found in this letter of his to her. The letter, the petitioner says, she destroyed, but she testifies to its contents, portions of which, if her testimony was supported, would, perhaps, justify the conclusion of a desertion at that time by the husband. But what the contents of the letter were, so far as they show an intent on the part of the writer to desert his wife, rests upon the testimony of the petitioner alone, and it is entirely settled in this state that a divorce will not be granted upon the unsupported testimony of the petitioner as to the fact of the desertion. Tate v. Tate, 11 C. E. Gr. 55; Pullin v. Pullin, 2 Stew. Eq. 541; Sandford v. Sanford, 5 Stew. Eq. 420; McShane v. McShane, 18 Stew. Eq. 341; Costill v. Costill, 2 Dick. Ch. Rep. 346. The petitioner's mother was examined as a witness in the case, and testified as to some parts of the contents of the letter, which she said that she had read. Those portions, however, show no intent of the husband to desert his wife. It is insisted, on behalf of the petitioner, that the conduct of the defendant, subsequent to October 1st, 1897, shows that he had no intention of ever resuming marital relations with his wife. Conceding this to be so (although I am unable to discover satisfactory proof of it in the testimony), it cannot benefit the petitioner. Her conduct in removing to this state on that day, with the avowed object of acquiring a residence here for the purpose of obtaining a divorce from her husband at the expiration of two years, and her steadfast holding to that purpose up to the filing of her petition in this case, demonstrate that the separation was not against her will, and consequently that the desertion was not an obstinate one, within the meaning of the statute. Moores v. Moores, 1 C. E. Gr. 275; Newing v. Newing, 18 Stew. Eq. 498; Hall v. Hall, 15 Dick. Ch. Rep. 469. The decree should be affirmed. 1 Turner v. Davenport. For affirmance-DIXON, GUMMERE, COLLINS, ADAMS, VOORHEES, VROOм-6. For reversal-VAN SYCKEL, GARRISON, FORT, HENDRICKSON, VREDENBURGH-5. FANNIE TURNER, complainant and appellant, υ. JAMES H. DAVENPORT et al., defendants and respondents. [Submitted March Term, 1901. Decided June 17th, 1901. 1. The last clause of section 14 of the Married Women's act of March 27th, 1874 (Gen. Stat. p. 2015), declaring that nothing in the act should "enable husband and wife to contract with or to sue each other except as heretofore," is not repealed by the amendatory act of June 13th, 1895. Gen. Stat. p. 2017. 2. Section 4 of our Married Women's act makes the wages and earnings of a married woman, since the passage of the act, in any employment in which she is employed, separately from her husband, her sole and separate property as though she were a single woman. 3. Under our statute a married woman may engage for wages, by contract, with any person other than her husband, and whether her husband consent or not, she is entitled to receive the money due her for such service as her separate property. 4. The rule of the common law that a husband, by virtue of the marital contract, was entitled to the earnings of the wife, is superseded by our statute, where the wife contracts for her services with any other person than her husband, and wages to which she is entitled under such a contract are her separate property and cannot, as against her claim therefor, be reduced to possession by the husband. 5. A married woman may contract with a firm in which her husband is a member and recover in equity for wages for her personal services under such contract. On appeal from a decree of the chancellor, whose opinion is reported in 16 Dick. Ch. Rep. 18. Turner v. Davenport. Mr. Walter J. Knight, for the appellant. The opinion of the court was delivered by FORT, J. This was a bill by a married woman to have it decreed that the defendants, constituting a co-partnership, of which her husband is a member, pay her for her services to the firm. The opinion of the chancellor in this case, as reported, correctly states the facts. The performance of the services was admitted. The amount claimed is found by the chancellor to have been reasonable. The claim is a just one. The only question is, can a wife recover for her services to a firm in which her husband is a member? The claim of right to recover is first put upon the ground that a wife may contract with her husband and maintain a suit in equity even against him to enforce such a contract, under the amendment to our Married Women's act, passed June 12th, 1895. P. L. of 1895 p. 821. The insistment is that this amendment of 1895 so modifies the Married Women's act, approved March 27th, 1874 (Rev. Stat. 1874 p. 469 § 5), as to permit her to contract with any person, and hence with her husband, and making such contracts enforceable, both at law and in equity, by or against such married woman, even as to her husband. Gen. Stat. p. 2017 § 26. A full discussion of the effect of the amendment of 1895 will be found in the opinion of the learned chancellor in this case. With his conclusions upon this statute we agree. His construction of the statute is adopted by us on this branch of the case for the reasons stated by him. Turner v. Davenport, 16 Dick. Ch. Rep. 18. The other ground upon which reversal is asked is that the learned chancellor erred in denying the relief prayed and holding that the complainant is not entitled to relief in equity, because the money sought to be decreed to be paid to her is for her wages, for her labor and personal services to the firm in which her husband is a member, the right to which wages is Turner v. Davenport. in her husband, by virtue of the marriage relation, and hence no part of her separate estate for which she may maintain a bill in equity against her husband or a firm in which he is a member. That a bill could be maintained at common law by a wife even against her husband, where he held money of his wife's separate estate, the learned chancellor concedes in this case, and cites the authorities fully to sustain that position. Turner v. Davenport, supra. This court held the same doctrine in a later case. Adoue v. Spencer, 17 Dick. Ch. Rep. 782. It is well settled at common law that the wages and earnings of the wife became, or could become, by reduction to possession, the absolute property of the husband. Moneys due her were choses in action, which he could reduce to possession. Our Married Women's act has intervened, if not to entirely change this, certainly to change the presumptions arising from the mere fact of services performed and wages due a wife. She may now contract with any person. She may engage to labor or serve in any capacity for wages. She may engage in business on her own account. She may sue for the recovery of debts or wages due her, apart from her husband. If a husband may still be said to be in a position to claim his wife's earnings, if he demand, or make claim to them before they are paid, or assert a right thereto as against her claim or suit therefor, his right is not one which courts will assume to exist, or allow by operation of law, to defeat the wife's claim or suit to recover for such earnings when due. Under our statute permitting a wife to contract "with any person" as if she were a feme sole, it will at least be presumed, in default of any dissent on the part of the husband, and certainly when it appears he had knowledge of it, that he assents to her receiving the wages of her labor to her own use. By section 11 of our Married Women's act a wife is given express statutory right to maintain a suit in her own name for her wages and earnings, which are, by our statute, made her separate property. Gen. Stat. p. 2014. |