Lewis's Estate

1 Law Times (N.S.) 185

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: April 5, 1879
• Status: Published

Opinion

The Court.

The power of a married woman to charge her separate estate with debts tor necessary repairs or improvements, results not from the words of the statu to, as in the case of necessaries furnished to her family, but rather from construction and implication (Kuhns and Wife vs. Turney, 36 Legal Intell. 37; Shannon vs. Shultz, Id. 125). “If,” says Gordon, J., in the case first cited, “she is to enjoy her property, it must be that she shall have the power to keep it in a proper condition for use or profit."’

The reason thus given applies, to the extent of her in, forest, whether her ownership is in severalty or in common with others; nor is there anything, either in the letter or spirit of the Act, which requires that the contract for such repairs, etc., shall he made by herself individually and not. through the agency of a third person; or which exempts her from liability where credit is given to the agent acting for an undisclosed principal.

"When it is sought to charge her or her estate for repairs or improvements, it is necessary to show that she was an wnor of the property in respect of which the- work was Unto or the materials were furnished; that she, by herself or her agent, made the contract; and that the work done or materials furnished were-necessary for the use and enjoyment of the property.

In the present case the claim, as amended, is for the decedent’s proportion of the repairs upon property of which she was a co-owner. The fact of such ownership is found by the adjudication, ?is is also the fact that the work was done at the instance of decedent through the agency of her husband.

It is objected, however, that it was not shown affirmatively, nor is it so stated by the adjudication, that the repairs were necessary. This, perhaps, is explained by the fact that the amount in controversy is very small ($85), and that a letter from flic accountant, to claimant’s counsel was exhibited, in which it was stated that the claim as amended “was just and equitable, and that no objection to its allowance would be made.” Naturally after this a full statement of facts would hardly be deemed important.

But the necessity for the work is perhaps implied ex vi termini by the word “repair,” the definition of which, as given by Webster, is a “restoration to a sound or good state after decay, waste, injury, or partial destruction.”

If, however, there is any doubt on this point, as the letter alluded to may have misled, it is proper that an opportunity of proving that the repairs were necessary should be afforded, if the fact be denied. The account will, therefore, if the accountant asks tor it, be referred back to die auditing Judge for this purpose. Bhould no such request be made within two weeks from the date of filing this opinion, wo shall assume the fact to have been shown and the adjudication, amended accordingly, and dismiss the exceptions.

Opinion by

PexROsu, J.

The Judge, in Lanier vs. Mayor and Council of Macon, 59 Ga. 187, does us the honor to hold that- we lawyers are a “profession,” within the meaning of a statute for taxation. We could well have dispensed with the complanen*-for the sake of the exemption. The statute authorized “a tax upon factors, brokers and venders of lottery tickets, upon agents or managers of gift enterprises, and upon all other persons exercising within the city any ‘profession,’ trade or calling of any nature, whatever.” It was argued that “profession” here meant something connected with the previously-mentioned classes of persorfc; but the court say: “As the word profession has long been used and understood in Georgia, its application to lawyers and physicians is instantly recognized and clearly comprehended. To suppose it used with any reference to factors, brokers, venders of lottery tickets, and agents or managers of gift enterprises would be doing unheard-of-violence. We are not aware that these classes have ever, anywhere or by anybody, been called professional persons, or considered as exercising a profession.” Our own impression is that the Legislature meant “professional gamblers,” but we do not press that view in opposition to the court.