Maurice Freedman, Herbert H. Hadra, Robert H. Arronson, Philadelphia, for appellant.
Samuel Kenin, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 508]
Sylvia Adler, appellant, instituted this action in assumpsit against her husband, Morris Adler, to recover moneys expended by her out of her separate estate for the support of herself and her two minor children from the date of her husband's desertion until the entry of
[ 171 Pa. Super. Page 509]
a support order. Preliminary objections in the nature of a demurrer were sustained by the court below. The wife has appealed from the entry of judgment for the husband.
Appellant's complaint avers, inter alia, that the parties were married on June 28, 1936; that two children were born to the parties; that defendant deserted his wife and children on June 17, 1950, and since that date has failed and refused to support appellant and their children. Appellant averred that she '* * * was obligated to furnish food, clothing and other necessaries for the maintenance and support of herself and their two minor children, at her own cost and expense out of her own separate and individual estate'. There followed an itemized statement of expenditures made by appellant.
The pivotal question is whether a deserted wife may maintain an action in assumpsit against her husband to recover moneys expended by her out of her separate estate for support, maintenance and necessaries for herself and their children. The court below concluded that no such right of action existed in favor of the wife; that the Married Women's Property Acts provided that the wife could sue her husband to recover property in the 'possession or control' of the husband but not for sums expended for maintenance or for necessaries.
At common law such an action as here instituted was not maintainable by a wife against her husband, but the Married Women's Property Acts change the common-law rule. The Act of June 8, 1893, P.L. 344, § 3, as amended by the Act of March 27, 1913, P.L. 14, § 1, 48 P.S. § 111, provides that 'Hereafter a married woman may sue and be sued civilly, in all respects, and in any from of action, and with the same effect and results and consequences, as an unmarried person; but she may not sue her husband, except in a proceeding
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for divorce, or in a proceeding to protect and recover her separate property * * *.' The Act of May 1, 1913, P.L. 146, § 1, 48 P.S. § 114, provides: 'From and after the passage of this act, any wife, who has been deserted, abandoned, or driven from her home by her husband, may sue her husband civilly, in any court of this Commonwealth having the jurisdiction, upon any cause ...