Graver's Petition

Opinion by

Mr. Justice Walling,

This appeal is by a married woman from an order dismissing her petition to be declared a feme sole trader under the Act of May 28, 1915, P. L. 639.

Mrs. Nellie Aiken Graver, the petitioner, and Dr. Edward Graver, the respondent, were married in 1910. She was a woman of ample fortune and resided with her mother in their home on Fifth avenue, Pittsburgh. After the marriage Dr. Graver lived with them, but, as he was without means, they continued to maintain the home at their joint expense. Mr. and Mrs. Graver have one child, a daughter, born in 1912. Thereafter the doctor devoted his attention largely to the care and nurture of the child, as he was not in active practice. Mrs. Graver became ill in the fall of 1914, and so continued until late the following spring, when she had so far recovered as to go out for automobile rides. On May 18,1915, she left the home apparently to take her usual morning ride with the nurse and child, but in reality was driven to the Union Station, where she was joined by her mother and a detective and took a train for New York. The doctor had no intimation of his wife’s departure until later the same day when her agents, or those of her mother, came and ejected him from their home; since which time he has resided with his mother on the opposite side of the avenue. From that time until the hearing in this case, Mrs- Graver with her mother and the child had.resided in and about New York, and never communicated with Dr. Graver or advised him of their whereabouts. He sent his wife one letter to her Pittsburgh address ,but received no answer. He was never requested to and never did • contribute anything financially towards the support of his wife or child. In June, 1916, Mrs. Graver filed her petition in this case to be declared a feme sole trader. The doctor has not seen his child since they left Pittsburgh as above stated, nor his wife except at hearings in this case.

Mrs. Graver gives various reasons for the separation, among others, that her husband assumed such an indifferent and sullen attitude towards herself and her mother, and such dictatorial and unreasonable management of the child, as caused the wife’s sickness above referred to and compelled her departure ,• after which she rapidly regained her health. Dr. Graver denies every allegation of misconduct on his part and avers that his conduct was ever what a husband’s should be, and that he gave his wife no cause for separation from him and is desirous of renewing their marital relations. The evidence is conflicting. Her physician testifies that while he advised a change of surroundings, etc., he had no thought of a separation from her husband. The learned judge, who saw the witnesses and heard the testimony, found the disputed facts in favor of the husband and placed upon the wife the blame for the separation.

This appeal is in substance a certiorari, and, while we cannot review the merits, yet “we are entitled to inspect the whole record with regard to the regularity and propriety of the proceedings to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion.” See opinion by our Brother Mosohz-iskek in Franklin Film Mfg. Corporation, 253 Pa. 122. It is earnestly urged for appellant that the court’s findings of facts constitute an abuse of legal discretion. We are not prepared to sustain that contention but do not regard it necessary to so pass upon the findings in view of what we consider the controlling question. To bring a case within the statute relating to feme sole traders, the parties must have lived apart and separate and all marital relations between them ceased for one year or more; and it must appear that during that time “the husband ......has not supported his wife, nor their child or children, if any they have,” nor contributed toward their support. The case may seem to come within the language of the statute as the parties lived separate and apart for the required time, during which the husband contributed nothing toward the support of his wife or child. But the undisputed evidence is that Mrs. Graver took the child and secretly left their home and lived in a large city in another state and kept from her husband knowledge of her going and the place to which she went. After departing from her home she did not communicate with him, directly or indirectly; and gave him no opportunity to provide support for herself or child, and testifies that had he offered to do so she probably would not have accepted it. By her own voluntary acts Mrs. Graver made it practically impossible for her husband to support herself or child and cannot take advantage of a status which she thus created, nor charge him with the failure to perform that which she made it impossible for him to do. In our opinion the failure of the husband to support his family, contemplated by the act, must be such as to constitute a breach of duty on his part. As our conclusion on this branch of the case necessarily sustains the order of the court below, we refrain from further discussion.

The appeal is dismissed at the costs of the appellant.