Volume III Part 141 (1/2)
PENNSYLVANIA STATUTES AND COURT DECISIONS.
This ”perfection of reason” (the common law) has been changed in Pennsylvania in the following particulars:
All women, married and single, are deprived of political rights by the use of the generic word ”freeman” in the const.i.tution (29 Legal Intelligencer, 5).
Heir at common law is abolished by statute; however, the right to administer vests in the male in preference to the female of the same degree of consanguinity. Half-brothers are ent.i.tled to the preference over own sisters (Purdon, 410, 27; Single's Appeal, 59 Penn. St. R., 55).
Any property belonging to a woman before marriage, or which accrues to her during coverture by gift, bequest or purchase, continues, by the act of April 11, 1848, to be her separate property after marriage, and is not liable for the debts of her husband nor subject to his disposal without her written consent, duly acknowledged before one of the judges of the Court of Common Pleas as voluntarily given; _provided_, that he is not liable for the debts contracted before or after marriage, or for her torts (Purdon's Dig., 1,005, 13).
”This act protects the wife's interest in her separate property both as to t.i.tle and possession,” but ”does not empower her to convey her real estate by a deed in which her husband has not joined,” nor ”create a lease without his concurrence,” nor ”execute an obligation for the payment of money or the performance of any other act,” nor in any way dispose of her property save by gift or loan to him; she may bind her separate estate for his debts, and in security for the loan she may take a judgment or mortgage against the estate of the husband in the name of a third person, who shall act as her trustee (18 Penn. St. R., 506, 582; 21, 402; 1 Gr., 402; 6 Phila., 531; Pur. Dig., 1,007, 21).
The husband is the natural guardian or trustee of the property of the wife; but by application ”to the Court of Common Pleas of the county where she was domiciled at the time of her marriage,” the court will appoint a trustee (not her husband) to take charge of the property secured to her by the act of 1848. This act, however, does not authorize the appointment of a trustee, to the exclusion of her husband, of property owned by her prior to the pa.s.sage of the act, nor was it intended to affect vested rights of husbands and does not protect them for the wife's benefit against the claims of creditors (10 Penn. St. Rep., 398 and 505; 18, 392 and 509; 21, 260; 1 Jones, 272).
In a clear case the wife's real estate cannot be levied upon and sold by a creditor of the husband, _but the burden of proof_ is upon her to show by evidence ”which does not admit of a reasonable doubt,” that she owned the property before marriage or acquired it subsequently by gift, bequest, or paid for it with funds not furnished by her husband nor the result of their joint earnings.
The wife's possession of money is no evidence of her t.i.tle to it (18 Penn. St. Rep., 366; 7 Phila., 118).
If no property, or not sufficient property, of the husband can be found, the separate property and goods of the wife may be levied upon and sold for rent or for debts incurred for the support of the family (Purd. Dig., 1,006, 15; 38 Penn. St. Rep., 344).
A married woman's bond and warrant of attorney are absolutely void, nor can she make a valid contract except for a sewing-machine or for the improvement of her separate property, and her bond given or a judgment confessed by her for such debt is void (24 Penn. St.
Rep., 80; Act of 1872, Pur. Dig., 1,010).
She may sell and transfer shares of the capital stock of any railroad company, but cannot herself or by attorney transfer certificates of city loan (28 Leg. Int., 116; Act June 2, 1871).
A married woman cannot enforce her rights against third persons, either for the performance of a contract or the recovery of her property, without her husband join in the suit, although the party contracting with her is liable to an action (1 Gr., 21; Act of 1850 and 1839; 6 Phila., 223).
If divorced or separated from her husband by his neglect or desertion, she may protect her reputation by an action for slander and libel; but if her husband is the defendant, this suit, as also for alimony and divorce, must be in the name of a ”next friend.”
She is ent.i.tled to a writ of _habeas corpus_ if unlawfully restrained of her liberty (Purd. Dig., 510, 12; 513, 24; 754, 1).
The wife of a drunkard or profligate man by pet.i.tioning the Court of Common Pleas, setting forth these facts and his desertion of her and neglect to provide for her and their children, may be ent.i.tled to the custody of her children, and, as a ”_feme sole trader_,”
empowered to transact business and acquire a separate property, which shall be subject to her own disposal during life, and liable for the maintenance and education of her children. Her testimony must be sustained ”by two respectable witnesses” (Pur. Dig., 692, 5; Act of 1855, 2; 2 Roper, Husband and Wife, 171, 173).
By act of April, 1872, any married woman having first pet.i.tioned the court, stating under oath or affirmation her intention of claiming her separate earnings, is ent.i.tled to acquire by her labor a separate property which shall not be subject to any legal claim of her husband or of his creditors, she, however, being compelled ”to show t.i.tle and owners.h.i.+p in the same.” The husband's possession of property is evidence of his t.i.tle to it; not so with the wife (Purd. Dig., 1,010, 38, 39; 4 Lansing, 164; 61 Barb., 145).
A married woman may devise her separate property by will, subject, however, to the husband's curtesy, which in Pennsylvania attaches, though there be no issue born alive, and which she cannot bar (Purd. Dig., 806, 804; I Pars., 489; 26 Penn. St. R., 202, 203; 2 Brewster, 302).
The husband may bar the wife's dower by a _bona fide_ mortgage given by himself alone or by a judicial sale for the payment of his debts. It is also barred by a divorce obtained by her on the ground of his adultery, and in case of such divorce she is ent.i.tled to the value of one-half of the money and property which the husband received through her at marriage (Purd. Dig., 514; 2 Dall. 127; 12 Serg. and R., 21; I Yeates Pa., 300).
A single woman's will is revoked by her subsequent marriage, and is not again revived by the death of her husband; a single man's will is revoked by marriage absolutely only when he leaves a widow but no known heirs or kindred (Purd. Dig., 1,477, 18 and 19; 47 Penn.
S. Rep., 144, 34, 483).
If the husband die intestate leaving a widow and issue, the widow shall have one-third of his and their joint personalty absolutely, and one-third of the real estate for life; if there are no children, but collateral heirs, she is ent.i.tled to the use of one-half the realty, including the mansion-house, for her life, and one-half the personalty absolutely (Purd. Dig., 806, 2 and 3; Act of 1833, 1).
If the wife die intestate leaving a husband and no issue, he is ent.i.tled to her entire personalty and realty during his life; if there are children her personal estate is divided between the husband and children share and share alike; in either case he is ent.i.tled to their entire joint estate (Purd. Dig., 806, 5; Act of 1848, 9).
Married women may be corporate members of any inst.i.tution composed of and managed by women, having as its object the care and education of children or the support of sick and indigent women (Purd. Dig., 283; Act of 1859, 1).
It is a crime, punishable by fine and imprisonment, to employ any woman to attend or wait upon an audience in a theater, opera or licensed entertainment, to procure or furnish commodities or refreshments (Purd. Dig., 337, 112).