Elliott v. Bently , 17 Wis. 591 ( 1863 )

By the Court,

DixON, C. J.

It, is somewhat remarkable, among the many beneficent changes recently effected by legislation for the welfare and protection of married women, that the legislature should have omitted to secure to the wife the rewards of her individual skill and labor. Tbe real and personal property owned by her at the time of marriage, or which she may receive after marriage, by gift, grant, devise or bequest, from any person other than her husband, and the rents, issues and profits thereof, are zealously guarded and secured to her sole and separate use. But her earnings, the proceeds of her personal labor beyond that which is required in the discharge of the ordinary duties of the household and family, and.which are most frequently the married woman’s only means of acquiring property for the future support and comfort of herself and children, are left to the severe and rigorous rules of the common law, except when the husband, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for her present support, or the present support and education of her children. R. S., ch. 95, sec. 4. This seems contrary to the spirit of modern legislation upon the subject. If the property and its profits deserve protection from the acts or rapacity of tbe husband or bis creditors, the earnings of the indigent but frugal and industrious wife and mother would seem to deserve it still more. In this case it appears that Mrs. Bently had, with the assent of her husband, during a period of several years, earned considerable sums of money as a teacher of music, intending to retain them as her own. She had, however, from time to time, loaned the money in small amounts to her husband, to be used in his' business, until at last he was in possession of all. Finally, to repay her, he caused the notes in question, which were executed to him by the defendant Burnham, and which the plaintiff, as receiver, now seeks to reduce to his possession, and to subject them to the payment of the husband’s debts, to be delivered to one Oru-gom for the use of Mrs. Bently. Crugom afterwards delivered the notes to her, and she then transferred them, without consideration, to the defendant Wormsley for safe keeping, and Wormsley now has them in his possession. Had the money advanced been the proceeds of Mrs. Bently’s separate property, or the rents or profits, it is not improbable, in the absence of all fraud or circumstances of unfairness, that she would have been allowed to retain it or the notes received in payment. It seems harsh and unreasonable that she should not have the same rights now, but by law we are constrained to say that she has not. The rule of the common law, still unaffected by statute, so far as this case is concerned, admits of no doubt. By that rule the legal existence of the wife, as a distinct person, is, for most purposes, merged in that of the husband, and the marriage is an absolute gift to the husband of the goods, personal chattels and estate of which the wife was actually and beneficially possessed at the time in’her own right, and of such other goods and personal chattels as may come to her during the marriage. This is the language of all the writers and authorities upon the subject, and the rule remaining unchanged as to her earnings, it follows that they are the absolute and unqualified property of the husband. 1 Bright on Husband & Wife, 34; 1 Roper, 169 (30 Law Lib., 109); 1 Macqueen, 18 (57 Law Lib.,28); 2 Story’s Eq., § 1367. Even a court- of equity will not protect the earnings of a separate business carried on by the wife with the mere assent of the husband, against the husband’s creditors. It will only protect them against him. See Todd vs. Lee, 15 Wis., 365, and the authorities cited. The money earned by Mrs. Bently being her husband’s, and her existence as a distinct person being so far wholly unknown to the law, there could be no contract between him and her in relation to it,, and no legal obligation could arise or be created on his part to return it. It was his, and as such liable for the payment of his debts. The same is true of the notes. Mrs. Bently has no legal claim to them as against his creditors.

The question of fraud in the transfer of the notes, the only one argued by counsel, is not discussed, because the foregoing view of the rights of Mrs. Bently, who alone contests the claim of the plaintiff, renders such discussion unnecessary.

It likewise appears that $300 of the money advanced by Mrs. Bently to her husband was received from the estate of her father; but as that was mo|e than repaid in the purchase of the piano, which was paid for by her husband, and as his creditors as yet make no claim to the piano, an examination of that branch of the case is also unnecessary.

The judgment of the circuit court must be reversed, and the cause remanded for further proceedings according to law.