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In re Mikolajewski

Superior Court of Delaware, New Castle County

September 27, 1951

In re MIKOLAJEWSKI et al.

Proceedings in the matter of the mortgage of Virginia Josephine Mikolajewski and Charles A. Mikolajewski, wherein Joseph Gwiazda, as successor in interest to the mortgagors, filed a petition for a rule to show cause why mortgage should not be satisfied of record and named himself, in his capacity as administrator of the estate of his wife, who was the mortgagee, as one respondent and Virginia Josephine Mikolajewski, the daughter and heir at law of his wife, as the other respondent. The Superior Court, Herrmann, J., held that since the husband's cause of action was based upon an alleged oral agreement whereby his wife had promised that she would satisfy the mortgage which she held if he would purchase the property and take title in their names as tenants by the entireties, the action was not cognizable in the Superior Court, because the disability of the husband to enforce contractual rights against his wife did not terminate upon the death of the wife.

Rule discharged.

[46 Del. 346] On June 9, 1948, Frances Gwiazda, the wife of the petitioner Joseph Gwiazda, became the holder of a mortgage of record upon the property at No. 825 North Harrison Street, Wilmington, Delaware. The mortgage was executed by the owners of the property, Charles A. Mikolajewski and Virginia Josephine Mikolajewski, the daughter of Frances Gwiazda. Subsequently title to the property was vested in Joseph Gwiazda and Frances Gwiazda as tenants by the entireties. Frances Gwiazda died intestate on February 2, 1950 and Joseph Gwiazda became the administrator of her estate. The mortgage remains a lien of record against the property, title to which is now vested in Joseph Gwiazda as surviving tenant by the entireties.

The petitioner asserts that his wife, prior to her death, entered into an oral agreement with him whereby she promised that she would satisfy the mortgage which she held if he would purchase the property and take title in their names as tenants by the entireties. He contends that he performed his part of this contract but that his wife failed to satisfy the mortgage as she had promised to do. Attempting to remove the mortgage as a lien against the property, he now seeks to invoke the provisions of Code

Page 751

Paragraph 3694[1]. In so doing, he names himself, in the capacity of administrator of his wife's estate, as one respondent, [46 Del. 347] and he names Virginia Josephine Mikolajewski, the daughter and heir-at-law of his wife, as the other respondent.

Robert C. Barab, Wilmington, for petitioner, Joseph Gwiazda.

Newton White, Wilmington, for respondent, Joseph Gwiazda, Administrator of the Estate of Frances Gwiazda.

Joseph H. Flanzer, Wilmington, for respondent, Virginia Josephine Mikolajewski.

HERRMANN, J., sitting.

HERRMANN, Judge.

Theoretically at least, this is an adversary proceeding between a husband and the administrator of his wife's estate, based upon an alleged contract between the husband and wife. I am of the opinion that such an action is not cognizable in this Court.

At common law a contract between husband and wife was invalid and unenforceable. The Married Women's Act of this State, which removed many of the common-law disabilities of married women, appears at Paragraph 3541, Revised Code of Delaware 1935, and provides as follows: ‘ The property of a married woman, whether real, personal or mixed, and choses in action which she may have acquired in any manner, and all the income, rents and profits thereof, shall be deemed to be her sole and separate property and she may sell, convey, assign, transfer, devise, bequeath, encumber or otherwise dispose of the same, and she may contract jointly (including with her husband) or separately, sue and be sued, and exercise all other rights and powers, including the power to make a will, which a femme sole may do under the laws of this State; * * *.’

The primary question for determination is whether this Statute has removed the common-law disability of a married woman to contract with her husband.

With respect to the rights and liabilities of a married woman as to persons other than her husband, the Married Women's Act has been held to be a remedial statute and, therefore, one [46 Del. 348] to be liberally construed, Heitz v. Sayers, 1923, 2 W.W.Harr. 207, 121 A. 225; Industrial Trust Co. v. Cantera, 1933, 5 W.W.Harr. 364, 165 A. 338. With respect to the rights and liabilities of a married woman as to her ...


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