Small v. Small

Opinion,

Mr. Justice Mitchell :

The single question presented is whether the act,of June 3, 1887, P. L. 332, known as the Married Persons’ Property Act, authorizes a wife to sue her husband directly and in her own name for money received by him from, her separate estate.

Section 4 of the act reads: “ Husband and wife shall have the same civil remedies upon contracts in their own name and right, against all persons, for the protection and recovery of their separate property, as unmarried persons.”

This language is general and unlimited. It makes no exception of actions against each other, and, taken by itself, its natural meaning is, perhaps, broad enough to include them without straining. But no rule of judicial interpretation is wiser or better settled, than that which prohibits the taking of a single sentence, even though it form a separate section of a statute, and construing it apart from the context, or without regard to the subject matter and the general purpose sought to be accomplished. The present act gives notable warning of the danger of such a course. Though not long, it is extremely intricate and confused, if not contradictory. The first two sections make the same general grant at least four- times, and each time with such variation, that though the general purpose is clear, very difficult questions may be raised as to the exact limits of the powers conferred. Section 3 then proceeds to grant certain specific powers, all of which, except for the doubt raised by this section itself, are clearly conferred by parts of the language of the preceding sections. It is a striking example of what is not infrequent in legislation, and the avoidance of which, I may say in passing, is by no means the least difficult of judicial accomplishments, the desire to enforce and emphasize the intention, leading to a second expression which tends to becloud the first. Next is the fourth section, with which we are immediately concerned. Like the preceding section, it seems to be the product of a desire to emphasize a grant already abundantly implied in the control over property, “ with all the rights and liabilities incident thereto ” of the first section, and expressty given in the capacity to sue and be sued provided by the second. Can it be fairly construed to mean more than this ? The general purpose of the act is clear enough. It is to give married women the sainé freedom of ownership, control, and disposition of their property and earnings, and the rights and remedies incident thereto, that men have over theirs. It accordingly confers upon them the absolute power of disposition of their personal property, but requires the joining of the husband in the mortgage or conveyance of real estate. The rights of action conferred, either by implication in § 1, as already said, or expressly in the later sections, are given as means of maintaining the rights of property conferred by the sections themselves, and there is nowhere any indication of a purpose to extend them beyond their character as a necessary incident for that purpose. Still less is there any indication of a purpose to extend the rights or powers of the husband, which a right to sue the wife under the construction of § 4 contended for would certainly do.

If we look not only at the general intent of the act, but more closely at the language used, we are led to the same result. The purpose is not only expressed broadly in apt language once, but is repeated and reiterated with superabundant caution. In this varied and detailed consideration, it is impossible to suppose that so important a branch of the subject as the right of action between husband and wife should not have been thought of, or being thought of should not have been granted in unequivocal terms, if intended to be granted at all. To legislators, versed in the principles of the common law, it would immediately suggest itself as a distinct and momentous departure from the legal policy of centuries, which ordinary phraseology, however general, would not commonly be understood to intend, and it is inconceivable that under such circumstances, it should be granted obscurely and by implication. As said by Woodwakd, J., in Ritter v. Ritter, 31 Pa. 398, “if the legislature meant that such actions as the present should be sustained, they had command of a very copious language in which to express their will.” The acts of April 11, 1856, P. L. 315, and June 11,1879, P. L. 126, make provision for actions by the wife against the husband in cases, of desertion, or neglect or refusal to support, and we conclude that the legislature thought this remedy ample, without extending it to suits between parties living amicably together in the marital relation.

This view is confirmed almost to a demonstration by the legislative1 history of the act of 1887. The fourth section follows closely the English Married Woman’s Property Act of 1882, 45 and.46 Viet., c. 75, Law Rep. Stat., 1882, p. 458; and, as originally introduced into the senate, it provided, as that act does, that “ husband and wife shall have the same civil remedies upon contracts in their own name and right against all persons, including each other” etc.: Legislative Record, 1887, p 896. This specific provision which put the change in the previous law into that precise, definite, and unquestionable form which its importance demanded, was struck out, and the section passed without it. The inference from this action is irresistible, that the legislature did not intend that actions between husband and wife, while living together, should be authorized.

It is argued that as the language is the same with respect to both husband and wife, it must authorize both or neither to sue |he other, and, therefore, if it does not authorize the husband to sue the wife, we shall have the absurd result that the legislature has solemnly conferred upon a married man the same right to sue strangers that an unmarried man possesses. This is not without plausibility, and, if the section stood alone, would be of much force. But taken in its connection, it is an additional link in the argument that the husband’s rights, except as involved in the regulation of his wife’s, were not intended to be affected at all. The same may be said of the phrase, “ their separate property,” in the same section. What is a husband’s separate property ? In the language of the law, such a phrase is as absurd as the result pictured in the argument referred to. In truth, the real explanation of both phrases, entirely unsuitable as they stand, is the failure to notice the effect of striking out the words, “ including each other,” contained in the act as originally introduced. With these words left in, the absurdity as to suits by the husband disappears, and the phrase “separate property,” though not elegant as to legal style, is clear and definite in its meaning.

There are several other changes from the first draft to the act as finally passed, such as the striking out of § 3 of the power to convey real estate without the husband joining, and the attaching of a proviso to the contrary to § 1, etc., which indicate that the act as originally introduced was much more radical in its changes than the legislature was willing to pass, and we think it clear that the authority to sue each other was one of the proposed changes which were refused a sanction.

One further consideration which may be adverted to, is the hardship and injustice which might arise as to past matters by the grant of a universal and unrestricted right to sue upon a claim which the defendant may have had no reason to expect or foresee. The present case affords a striking example of these dangers. Of course, I do not speak of the moral merits of the case, for of these I know nothing, but of the legal possibilities. The husband received this money about 1856. There is no claim that he received it against the wife’s will, nor any evidence that it was not used for their mutual benefit in the support of the family. Thirty years after it has been thus spent, presumably with her entire approval, a difference or quarrel occurs, and the wife sues to recover the money. No promise to pay is proved or pretended. The plaintiff rests on the presumption that her husband received it as trustee for her, and as her counsel truly say, “ the burden is upon him to prove the contrary.” Yet the very same legislature that is claimed to have put this action and its consequent burden upon him, in a most ably drafted and elaborately considered statute on the competency of witnesses, expressly denied him the right of testifying that the money was given to him by her, or that he spent it at her direction. This, of course, is a legislative rather than a judicial argument, but it adds force to the considerations which induce the court to say now, as it has said with marked emphasis heretofore, that so great a change in the policy of the law, upon a subject that may come home to every householder in the commonwealth, should not rest on inference, or implication from general words, but should appear by the ■ explicit and unquestionable mandate of the legislature; and when the change is made, if at all, it should be done in such form as to guard against the possibilities of injustice in regard to past transactions such as are suggested by the present case.

Judgment reversed.