
    [Philadelphia,
    January 17, 1828.]
    STARRETT, by his Guardian LIGGETT, against WYNN and another.
    IN ERROR.
    If a husband deserts his wife and ceases to perform his marital duties, the acquisitions of property made by the wife during such desertion are her separate estate, and she may dispose of them by will or otherwise.
    Writ of error to the Court of Common Pleas of Chester county. ■ •
    This was an action of trespass, brought by the plaintiff in error, William Starrett, to recover damages for certain personal property seized and sold by John Wynn, one of the defendants in error, as a constable under an execution at the suit of Joshua Evans, the other defendant in error, against a certain Reuben Starrett.
    
    The property in question once belonged to Reuben Starrett, but had been sold under an execution at the suit of his sister, Mary Starrett, bought in for her, and by her will left to the minor plaintiff, a son of the same Reuben.
    
    Oh the part of the defendants it was, amongst other things, contended, that Mary Starrett was a feme covert, and actually intermarried with one Samuel Gibson at the time of making the will: that the will was therefore void, and conveyed rjo right to the plaintiff.
    On the first trial the fact of marriage was controverted by the plaintiff, and a verdict obtained in his fayour for three hundred and twenty-five dollars.
    
      This verdict having been set aside, and a new trial granted, on the last trial, the fact of a marriage having taken place, Was not controverted by the plaintiff, but evidence was adduced on his part to show, that the husband from the time of the marriage, in November, 1812, up to the death of. the said Mary Starrett, in 1821, had never co-habited with her a day; that he abandoned her immediately, and enlisted as a common soldier shortly-after; married another woman in Canada; never contributed to her support, nor placed property in her possession, nor interfered with her estate:, that from the time of the marriage to her death, she had the entire control of her property, and that' property derived from sources independent of her husband, principally, before coverture; that she did not assume the n.ame of her husband, but brought suits and transacted business in her maiden name, and was generally recognised and called by that name among’all her acquaintances; that the said husband had resided for several years in Philadelphia with another woman, followed wood-sawing, and had never interfered with the execution of the will, or made any claim to the property; and it was contended, on behalf of the plaintiff, that property held under such circumstances- would be regarded in chancery as the separate estate of the wife, which she had a right to dispose of by will, independent of her husband:- also, that the conduct of the husband, after her death, went tp show an affirmance of the will by him. The court was therefore requested, by the plaintiff’s counsel, to charge the jury as follow's:—
    
      “ 1. If the jury believe, from the facts in this case, that Samuel Gibson abandoned or relinquished the rights which his marriage gave him over the property of his wife, she had a right to dispose of such property by will. And there is evidence in the cause, for their consideration, going to establish this point.
    
      “ 2. In order to establish ..the right of separate, property in the wife, it is not necessary to prove a contract or agreement between husband and wife, nor the intervention of trustees; but it may be acquired by gift, voluntary consent, or such a total abandonment as will warrant the inference of his assent.
    “ 3. The will of Mary Starrett, even though a separate property is not proved, may be affirmed by the acts of her husband.
    “4. The conduct of Samuel Gibson, both before and since the death of his alleged wife, as proved in this causé, goes to show his assent to her right to dispose of this property by will: and, if the jury believe he did so assent, it is not competent for a mere stranger to say it is void.” ‘ .
    Upon these points, the court charged,—
    a 1 and ,2. The control of the husband over the personal property of his wife, during coverture, is an important, positive, and well established right; a right of which he cannot be deprived but by his own act and agreement. He may agree that his wife may hold and enjoy as her separate property, notwithstanding her coverture; and over such property she will have the absolute control, to dispose of as she pleases, either in her lifetime, or by will at her death. This agreement, that the wife shall hold separate property, may be in various shapes, by the husband, or between the husband arid wife, before or after the marriage, and with, or without the intervention of' trustees. But it is essential that/the husband should do some act, he must make some-agreement pr arrangement to part with the control or dominion over .the property, which by law belongs to him, and vest it as separate property of the wife; and this may be proved, like all other facts, either expressly, br by circumstances. If there exists any evidence in this cause of such an act or agreement of the husband,-either expressly or circumstantially, it would be laid beforehand left to the jury. But I am of opinion that there is none. We are not to infer an agreement that the wife shall hold property to her separate. use without any interference or control on the part of the husband, from circumstances of another character, which may or may not exist with or without such an agreement on the paid of the husband. I am of opinion that the circumstances of living separate from the wife, or deserting her and contributing nothing to her support, and the other facts relie’d on in this cause,.do not entitle the jury to infer an agreement of the husband, that the wife should enjoy the-property in question to her separate use.
    
      “ 3 and 4. The will of Mary Starrett, (Gibson,) even though a separate property is not proved, may be affirmed by the husband; but there is no act of assent to this will by Samuel Gibson, in any shape in evidence before the jury — mere silence is insufficient.’7
    The plaintiff excepted to this opinion,
    
      jBell and Tilghman, for the plaintiff in error.
    
      Dillingham and Chauncey, contra.
    
   The opinion of the court was delivered by

Rogers, J.

The testimony would have justified the jury in finding, that Mary Starrett had been abandoned by her husband, Samuel Gibson. The fact of abandonment as being found by the jury, raises a question of some novelty, as well as of great importance to feme coverts, whether property acquired during the time of the desertion, can be disposed of by the wife, by will, or otherwise. In other words, is property acquired under such circumstances separate estate, and, as such,' subject to her disposition? It is. conceded, that the control of the husband over the personal property of the wife, during coverture, is an important privilege, and well established right, of which he cannot be deprived, but by his own act or agreement. The acquisitions of the feme covert, inure to the benefit of the husband, as when a bond is given to the wife, he may sue alone. A gift or legacy to the wife, and even the rewards of. her personal labour, during coverture, vest in the husband, and he may release them. As the law imposes the obligation of maintaining the wife; and also endows her, it is but reasonable that he should have the advantages which, arise from the relation of marriage. But, although these are conceded as general principles, yet the exigencies of society, and experience, have introduced several exceptions. Thus, when a husband is exiled, his wife is permitted to sue in her own name. Co. Lift. 132. n. So, also, when the husband has abjured the realm, in such cases, she is permitted to claim her land, without her husband, and is'exempted from the disabilities of covertures. She may maintain trespass, may sue for her jointure, and may also be sued as a femé sole. And, as in thp case of The Countess of Rutland, against Rodgers, she may make a will, and may, in all things, act as a feme sole, and as if her husband was dead, and this from the necessity of the case. . These cases, which are put by way of example, show the great relaxation which has taken place from the rigidity of the ancient rules, which are relaxed from necessity, or where the reason of.the rule has ceased to exist. The question, then, arises, when the husband has abandoned his wife, separated from her, without affording her support, does his marital right still continue so as to give him an absolute property in her acquisitions. Unless some positive rule of law intervenes,I policy and humanity would require, that, as he has. cut himselfj loose from the duties, which the relation of marriage imposes, hel shall not be allowed its advantages. His conduct would amount to a virtual surrender of his rights. Why should she not be permitted, by industry and management, to acquire property for herself and family? Why should she be liable to plunder, at the will and pleasure of a brutal and*unfeeling husband, who, perhaps, has deserted her without cause, and returns for the purpose of seizing on her hard earnings? A husband goes off with an adulteress, and continues absent for years; in the mean timé, the wife, by industry, and the assistance and compassion of friends, acquires property, and she disposes of it by will, which the husband endeavours to wrest from the objects of her bounty. Such cases have, and will again arise, and it- should be an unbending principle of law, which woukTsanetion such injustice. It is said, that she may obtain a divorce: but why should we compel a woman, deserted by her husband, to sue for a divorce?. Although abandoned, they do not always cease to cherish an affection for a worthless husband; besides, some wives áre principled against divorces, nor should they be compelled, in order to aVo.id injustice, to resort .to such a remedy. They are sometimes stimulated to exertion, by a hope, that the acquisition of property may be a mean of reclaiming the husband, or, at least, in case of a subsequent union, of preventing ill treatment.

It is granted, that a husband may by express or implied agreements, renounce his marital rights, and vest property acquired by the wife as her separate property, and this where the husband is in the strict performance of all his duties. Thus, in Slanning v. Style, 3 P. Wms. 338, a husband, voluntarily, and after marriage, allows his wife, for her separate use, to make profit of all butter, eggs, pigs, poultry^ and fruit, beyond what is used in the family; out of which the wife saves one hundred pounds, which the husband borrows, and dies; the court will allow this agreement to encourage the wife’s frugality, and the wife ¿.ball come in as a creditor for the one hundred pounds. So, also, in Calmedy v. Calmedy, cited and-approved of in Slanning v. Styles,--r-where the husband agreed that the wife should take two guineas of every tenant that renewed a lease with the husband, the fine which the husband received, this was allowed to be the wife’s separate money. So, also, in Magrath v. Roberts’ Administrators, a wife may become a sole dealer, or trader, by permission of her husband, even withput deeds, and shemay become entitled to all her earnings, as her separate estate. But it is said, that here there is neither an agreement express or implied. To which it may be answered, that it Icannot be supposed that the husband intends his wife to starve; and, las he has voluntarily withdrawn his support, it is a fair presumption that he has consented to her using her own exertions to maintain herself. But whether this be a strained presumption, it is immaterial to inquire, as the court are of opinion that the desertion of the husband, and a cessation of his w.onted duties, vest a separate property in the wife, in the acquisitions made during the time of the desertion. Nor. does this opinion rest altogether on abstract reasoning. , It has the benefit of an express decision, in which the principle we have been supporting is fully recognised. Cecil and Wife et al. v. Juxon et al. 1 Atk. 278. The defendant, Emanuel Juxon, some few years after his marriage, left his wife and two small children, and went abroad, and did not see them for fourteen years; the wife’s mother, during this time, intrusted her with millinery and other goods, and permitted her to maintain herself and children out of the profits. The husband, upon his return, breaks open the wife’s house, and takes away all her goods, and produce of the stock so lent as aforesaid. The bill was inter alia brought for the re-delivery of the goods. The court decided, that what the wife has acquired in her husband’s absence to subsist herself and family, is her separate property, and is not liable to the disposition of the husband. Sir Joseph Jekvll, in delivering the opinion of the court, says; that as the desertion of the plaintiff, Emanuel Juxon, was fully proved, the court would look upon any thing acquired by the wife in his absence, for herself and family to subsist upon, as her separate property, and not liable to the disposition of the husband, when he should please to come home and plunder her, and therefore declared that the plaintiff, Mary Juxon, was entitled to the goods that were in her possession, and also to the stock in her separate trade, before the same were taken away by" the defendant for her separate use.

Judgment reversed, and a venire facias de novo awarded.  