Kendall v. Jennison

Colt, J. This case was submitted to the court upon an agreed statement of facts, with a provision that the court might draw such inferences from the facts as a jury might draw. The question of fact to be decided was whether the husband of the defendant, when he left this Commonwealth, intentionally and actually renounced his marital rights and duties, and so far deserted and abandoned his wife that she was thereafter entitled to make contracts as a feme sole. The general rule being that a married woman cannot make a contract or be sued, in cases where the provisions of the statute having reference to her own property do not apply, it follows that the burden of proof is on him who seeks to charge her by reason of the exception here relied on. In the ease at bar, there is some evidence tending to show an intentional abandonment of the wife by the husband at the time of his departure from the state in 1866. On the other hand, the [254] case finds that in 1872 the husband obtained a decree of divorce from his wife for desertion, from a court of competent jurisdiction in the state where he then resided, and after due notice to his wife. It does not appear that she appeared in said proceeding, or made any objection to it. We cannot say, as matter of law, that the court below was not justified in finding as a fact that, up to the time this divorce was obtained, there had been no such abandonment by the husband as would entitle the wife to be treated as a feme sole, and that after the divorce she was liable for all debts contracted. Gregory v. Pierce, 4 Met. 478. Exceptions overruled.