Suit by wife for separate maintenance wherein husband filed counterclaim seeking recovery of personal property in wife's possession. The Court of Chancery, Seitz, Chancellor, held that household goods and furnishings, even though contributed or paid for by the husband, are presumptively held jointly by the entireties, when such property is in their joint possession and use.
Order in accordance with opinion.
It is incumbent upon married couples who desire to preserve individual title to household goods and furnishings brought into the marriage relationship by them to so provide by appropriate document or other evidence which can overcome the presumption of joint ownership, and, in absence of such document or evidence, household goods and furnishings in joint possession and use of husband and wife would be considered held jointly by the entireties, even though they had been contributed or paid for by the husband. 13 Del.C. § 311.
[33 Del.Ch. 572] James R. Morford and George L. Sands, of Morford, Bennethum & Marvel, Wilmington, for plaintiff.
Arthur G. Logan, Wilmington, for defendant.
Plaintiff filed an action for separate maintenance against the defendant, her husband, on the theory that she was a deserted wife in destitute circumstances. Defendant filed, inter alia, a counterclaim seeking the recovery of certain personal property in plaintiff's possession on the ground that it was his exclusive property. Plaintiff answered the counterclaim by alleging that such property was moved from the family residence to an apartment in order that she might furnish her new apartment properly. Plaintiff's answer to the counterclaim does not appear to directly claim title to any of the property. However, the briefs
demonstrate that both parties have considered title as well as use to be in issue. I accept their approach with the suggestion that the pleadings be amended to raise the title point directly.
After elaborate preliminary legal skirmishes, plaintiff was awarded a monthly sum of money. However, this court reserved [33 Del.Ch. 573] decision on the counterclaim in question pending more thorough consideration of the very difficult legal points involved. This is the decision thereon.
Plaintiff suggests that the use of the personal property, apart from the question of title, was decided in her favor by implication as a part of the award of separate maintenance. I cannot agree with this contention because neither counsel even suggested that the question of the use of this personal property was involved in the allowance of separate maintenance. I say this without intending to suggest how it would have been treated.
I now consider the pertinent facts. Defendant deserted the plaintiff without legal cause. Thereafter, he caused the plaintiff to be evicted from the family residence by failure to pay the rent. The plaintiff moved to an apartment and took with her much of the household goods and furnishings. By agreement of counsel the items taken by the plaintiff were segregated and itemized. One list contains items which plaintiff sold after she moved. Another list was made up of items owned by plaintiff prior to the marriage. Still another list consists of the wedding gifts received by the parties. Defendant is willing to have plaintiff retain all of these items.
This decision is therefore concerned only with personal property received from three sources:
1. Property purchased by the defendant before marriage.
2. Property purchased and paid for by defendant during marriage.
3. Property received by defendant by will after marriage.
This court is met at the outset with plaintiff's contention that in an action for separate maintenance it lacks jurisdiction over a counterclaim seeking to have the court adjudicate, as between husband and wife, the question of title to personal property. Plaintiff says that this type of jurisdiction exists only when granted by statute because it is nothing but an equitable replevin. On the other hand, defendant contends that this counterclaim is perfectly proper because it could have formed the basis for a [33 Del.Ch. 574] separate action in Chancery; the jurisdictional ground ...