Staples v. Brown

95 Mass. 64

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1866
• Status: Published

Opinion

Chapman. J.

When this action was commenced, the title was in Mrs. Brown, under a deed conveying it to her, to hold to her sole and separate use. The demandant claimed title under the levy of an execution against the husband, and had made his levy on the ground that the conveyance to the wife was fraudulent as to the husband’s creditors. Since the wife’s decease this ground has been abandoned, and the demandant now seeks to maintain the action on the ground that the levy was valid upon the estate of the husband as tenant by the curtesy initiate, and that by the death of the wife his estate is now perfected.

Formerly the estate of a tenant by curtesy initiate was liable to be levied upon by his creditors. Mechanics’ Bank v. Williams, 17 Pick. 438. Gardner v. Hooper, 3 Gray, 398. But the law is changed by statute in this respect as to lands held by the wife to her sole and separate use. Gen. Sts. c. 108, § 1. Silsby v. Bullock, 10 Allen, 94. The wife has power to convey or devise such lands, by obtaining in writing the assent of her husband, or the consent of a judge of the supreme judicial court, superior court, or the probate court, granted on account of his sickness, insanity or absence from the state, or for other good cause. Gen. Sts. c. 108, § 3. So that, if a creditor were to levy upon the estate, the wife might immediately defeat the levy. The provision of § 1, that land thus held shall not be liable for the husband’s debts, makes a complete and consistent system.

Exceptions overruled.