Weiser v. Boys

4 Del. 249

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

The Court:

Booth, Chief Justice.

—By the law of the land husband and wife are considered as one. Her existence, in a legal sense, is merged in his. She acts with him and for him, and has no authority or will of her own. It is the policy of the law to regard the husband as the head of the wife, keeping her out of view as much as possible, and presenting him as the only responsible member of the family. Nevertheless, a woman may, before marriage, with the approbation of the husband, and by the intervention of a trustee, make a valid assignment of her property, which will vest it in the trustee and protect it from the debts of a husband. - And this-is not inconsistent with the principles before mentioned, for the property is changed by the act of the woman before marriage, and is valid as against the ■husband by his own assent; otherwise it would be fraudulent and void.

Wales, for plaintiff. Whitely, for defendants.

In relation to the scheduled property therefore, or such property as is expressly covered by the ante-nuptial contract, it would be protected against the husband’s debts; but it is different as to after acquired property, even the proceeds of the wife’s labor; which the contract does not embrace. This contract, making no provision-in relation to the proceeds or products of the scheduled property, covers only the property in the schedule mentioned. If that were levied on for the debts of the husband, the contract would protect it. And possibly the increase or avails of property so secured for the separate use of the wife, and employed by the terms of the contract in the separate and distinct business of the wife might Be protected. Of this we give no opinion. If it can be so it ought to-be regulated1 by law to prevent frauds on creditors or others. But it is apparent from this deed that there was no intention to provide for the' carrying on of a distinct business by the wife, as agent of the trustee, and with the trust property; nor does it appear that she did carry on such business; on the contrary, her husband!took out the license and kept the house in his own name, and held himself out to the world as the proprietor. And as to the services of the wife-there, and the prominence she held in the establishment, these are all: consistent with 'her husband’s keeping the house, for she acts as his. servant. So in relation to purchases made, even when the bills are-made out in her own name. There is no evidence that these purchases were made with the trust funds, or otherwise than with her husband’s funds, and by his command. He, at all events, would be responsible for them; being bought for and consumed in his house, and about his business. Verdict for defendants $420!,