Balster v. Cadick

29 App. D.C. 405, 1907 U.S. App. LEXIS 5467

• Court: District of Columbia Court of Appeals
• Decided: April 2, 1907
• Docket: No. 1729
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The single question presented for decision is whether the appellant is entitled to claim possession of the premises for life as tenant by the curtesy. This is determinable under the provisions of the married women’s acts in force at the time of the conveyance to the mother of the appellees. The first act was approved April 10, 1869 (16 Stat. at L. 45, chap. 23), and carried into the revision of the statutes applicable to the District of Columbia, in 1874, as secs. 727, 728, and others that have no\ bearing upon the present case. Sec. 727 declared the right of a married woman to any property, real or personal, belonging to her at the time of marriage, or acquired by her during marriage in any other tuay than by gift or conveyance from, her husband, shall be as absolute as if she were unmarried. That the property conveyed was, under the admitted statement, in fact a gift from her husband, is not affected by the fact that it passed to the wife through her sister as a mere medium for the transfer of the title. Cammack v. Carpenter, 3 App. D. C. 219, 226. It has heretofore been held by the general term of the supreme court of the District , * and by this court, that the statute aforesaid, neither by express provision nor necessary implication, has the effect to abolish tenancy by tire curtesy. Uhler v. Adams, 1 App. D. C. 392, 398. But it was also said in that case: “The act unquestionably gives the married woman the power to destroy it either by conveyance of her estate by deed, or by the devise of it in her will.” See also Zeust v. Staffan, 16 App. D. C. 141, 147. In that ease, however, the right of the husband as tenant by the curtesy having become vested before the revision of the statutes, in 1874, it was held that it could not be impaired by the provisions of.'sec.'728 of that revision. But what was said in respect of the effect of that section accords with the construction thereof in Uhler v. Adams, supra. Sec. 728 reads as follows r “Any: married, woman may convey, devise, and bequeath her property, or'any interest therein, in the same manner and with like effect as if she were unmarried.” This section broadened the act of. 1869, then under revision, and extended the power of conveyance, bequest, and devise to a married woman as if she were unmarried, of all of her property, however derived. Hamilton v. Rathbone, 175 U. S. 414, 419, 44 L. ed. 219, 221, 20 Sup. Ct. Rep. 155.

The land in controversy having been acquired by the wife after the enactment of see. 728, though by gift from her husband, passed by her devise to the appellees freed of any right of the husband as tenant by the curtesy.

There is nothing in the appellant’s contention that the words “all my property” used in the will may refer as well to the fee, subject to the curtesy, as to any other interest. The words are plain and free from ambiguity, and carry the absolute estate without limitation or restriction.

The court was right in directing the verdict, and the judgment thereon for the plaintiffs must be affirmed, with costs. It is so ordered. Affirmed.