Opinion,
Mr. Chief Justice Paxson :The plaintiff brought this action of trover and conversion before a justice of the peace, to recover the value of a few trifling articles of household furniture which had formerly belonged to his deceased wife. An appeal from the judgment of the justice to the Common Pleas, resulted in a verdict for the defendant. The verdict fully meets the” justice of the cause, and unless some error of law appears, the judgment must stand.
While the amount involved is trifling, the case is somewhat unique, and that it may be the better understood I will state the facts briefly. I am obliged to gather them chiefly from the history of the case, the counter-statement, and the arguments of counsel, as the appellant has printed the testimony of only a single witness. They are substantially as follows :
M. Kate Brown was the wife of the plaintiff, and died of consumption in January, 1883. She left no will, and the little personal property she possessed consisted of some trifling trinkets and a few articles of furniture, all of which were the gifts of her own family; no portion of it came from her husband. *123Shortly before she died, and in the extremity of her last sickness, she divided her jewelry between her sister and other members of her family. I do not understand the jewelry to be claimed in this suit, although it is difficult to speak accurately, as the narr is not printed. In any event, it was abandoned upon the argument at bar. The furniture she gave to her mother. The witness, Miss Nora Fox, testified that a few days before Mrs. Brown died she called her mother to her, and said: “ Mother, you have been so good to me, and I want to repay you, and I want you to send right away for my goods; you shall have them all; I give them to you all; that is the only way I can repay you for the kindness you did, and you have done so much for Samuel” — meaning her husband — “ and myself, and it is the only way I can repay you ; send for them as soon as you can, so the Browns do not get them, for they have been treating me very badly.” The furniture referred to was at this time on storage, where it had been placed by Mrs. Brown’s father. As it was therefore in the control of the donee’s husband, no other delivery of possession was necessary. The plaintiff was in New York when his wife died, and had been for some time previous thereto. He had been recalled by repeated telegrams to see his dying wife, without avail, and when the last urgent message was received his reply was, “ Impossible to come; furnace in a critical condition.” He appears to have been employed at some iron establishment as a furnace hand. He came shortly after his wife’s death, in time to attend her funeral. Upon the day he returned, a conversation occurred between his wife’s sister and himself, in which she informed him of the disposition his wife had made of her jewelry and furniture, to which he replied, “Well, that is all right.” The furniture was taken possession of by her father, and over four years thereafter this suit of trover and conversion was commenced to recover its value, and an administration was raised up, apparently for no other purpose than to sustain the action, there being no allegation the decedent owed any one a dollar. It was alleged in the counter-statement, and in the argument at bar, and not denied, that in the meantime the plaintiff had married another woman. While the bearing of this fact upon the law of the case is not apparent, it is interesting as a part of its history.
*124The plaintiff contended that the gift was ídcomplete; that, under the act of 1848, and the decisions of this court, she could not dispose of this property without the consent of her husband, the plaintiff; and that his consent, as proved by the witness, was not binding upon him, for the reason that the donee was not present at the conversation. These are the questions presented by the respective assignments of error.
The furniture was ’the undisputed property of the wife. Moreover, it had been taken into possession under the gift, used, and some of it possibly worn out or scattered. Under the circumstances, the jury would have a right to infer the consent of the husband, and we think the learned judge of the court below was fully justified in saying to them: “ If it (the testimony) satisfies you that the consent of the husband was given knowingly, deliberately, and that he intended by the language he used to give his consent, — and his intention is to be gathered from what was said and done by him on that occasion, — then we say to you that, although the consent did not appear in the lifetime of the wife, yet if with full knowledge of the facts he did give his consent subsequent to her death, and if Mrs. Niethammer was informed of that fact, and, acting upon it, took possession of the property, it would confer title; and if she had title to this property, there would be a defence in this case, and the defendant would be entitled to a verdict.”
We find no error in this instruction, and the verdict for the defendant naturally followed. It would be difficult to get any jury to find for the plaintiff under the circumstances developed in this case, unless twelve men could be found similarly situated, which is hardly possible in this commonwealth.
Judgment affirmed.