Guyer v. Harrison , 1883 Pa. LEXIS 194 ( 1883 )

Mr. Justice Tbunkey

delivered the opinion of the court,

It was decided by the court below that under the facts in this case the coverture of Mrs. Harrison is a good defence; not that a married woman is not liable upon her contract for professional services in any litigation, unless resulting favorably to her separate estate.

The plaintiff does not claim that the contract is valid at common law against Mrs. Harrison, but that she was competent to make it by operation of the Act of 1848, relative to the rights of married women. The subject of this contract is not named among those specified in that statute as exceptions to the general rule at common law. A married woman is enabled to hold, use and enjoy her property, not as a feme sole, hut as if it were settled to her separate use as a feme covert. When a separate estate has been settled upon her she has no power over such estate beyond what is given her by the instrument creatitig it, and this was the law before the Act of 1848, as well as since. With regard to her estate of every kind all her disabilities to contract or convey remain, except where removed by statutory provision. Her alleged contract or obligation is not binding upon her, unless made upon the footing of a statute. Her note or bond, though given for necessaries contracted for the support and maintenance of her family, or for improvement of her real estate, is absolutely void. By reason of her disabilities, her rights are so carefully guarded that there can be no recovery against her for a debt which, under the statute, she is competent to contract, unless the requisite facts are averred in the pleadings and proved at the trial.

At first, the courts doubted whether the Act of 1848 conferred upon a married woman power to contract for the repair or improvement of her real estate; but later, it has been settled that she is liable for such repairs and improvements, when made at her request and they are necessary for the preservation and enjoyment of her real estate. There is no express provision covering such a case, but the liability is the necessary result of the right of the wife to own, use and enjoy her property, without its being subject to transfer or encumbrance by her husband, which' right includes-the power to take cafe of it and preserve it from ruin: Lippincott v. Leeds, 77 Pa. St. 422. It is not enough to charge a married woman’s property, or to render her personally liable, to lend her money for the purpose of making repairs, or to furnish work and material for improvements; it must also affirmatively appear that the money was so' applied] or that the improvements were actually made, and that the same were necessary for the preservation or enjoyment of her property. Her power to contract for improvements is limited by the requirements of necessity: Hough v. Jones, 32 Pa. St. 432; Schriffer v. Laum, 81 Id. 385; Shannon v. Shultz, 87 Id. 481; Kuhns v. Turney, Id. 501. Thus, it has been judicially determined that a married woman is not the sole judge of the necessity for repairs and improvements of her ■ real'estate for its preservation or her enjoyment; that if she borrows money for the avowed purpose of making repairs and uses it for something else,.she is not legally bound to pay it; and that if she contracts for unnecessary improvements and the same are made, neither her land nor herself can legally he held for payment. The jury, or other, tribunal for determination of facts, must find from evidence that improvements' were actually made and were necessary to justify enforcing her alleged cóntract. The statute does not intend that a married woman may contract debts tó her injury, under a mistaken opinion, or under a pretext, that repairs or improvements of. her property are necessary. It is essential to the plaintiff’s case to show that her Weakness or,credulity has not been'imposed upon into the ordering of some useless alteration or building.

■Here, the plaintiff urges that the defendant is liable on like principle that she'would be for improvement of her land, and tlnff she is the sole judge whether the contest of her father’s will.was for improvement of her separate éstate. But she has not thq capacity tb'recklessly and foolishly .contract for the building of - an unnecessary arid unsuitable house, on pretext that it is for improvement of her larid ; nor-can she, without real, necessity fol; protectiori of her rights, contract for the services of cotiti'sel: 1 JSTor is there'any reason that her judgment of- the necessity for litigation should be conclusive, that does riot exist in case of improvements. Indeed the necessity for the services of 'coupsel ought clearly tb appear before holding her liable therefor]'tm'dér'an implied statutory imthority. The rule at'.common'law is not abrogated, save by express enactment, of riec'essary- iriiplicati’on from .the powers and rights expressly conferred;- The facts found lire, that Mrs; Harrison, a married woman, employed the plaintiff to contest her father’s will, that the plaintiff's services in the contest were worth fifteen hundred dollars, that the will was valid, and that her husband was one of the executors and took no part inconsistent with his office. Not a fact is found tending to show necessity for the contest for preservation or protection of her rights. Such fact may exist; but for aught that appears, the contest was an adventure in which the contestant ought not to win and could not losé.

Judgment affirmed.