Stewart v. Ross

50 Miss. 776

• Court: Mississippi Supreme Court
• Decided: October 15, 1874
• Status: Published

Opinion

Simrall, J.,

delivered the opinion of the court.

So much of the original bill as sought a cancellation of the conveyances which vested the property in Mrs. Boss has been abandoned, and the controversy on the part of the appellants, judgment creditors of W. E. Eoss, is limited to an effort to establish a life estate in him to the land as tenant by the curtesy, and to subject that to their judgments.

The novel and important question has been ably argued by counsel, whether, under existing statutes, W. E. Eoss took an estate by curtesy in the lands?

Mrs. Eoss acquired the lands, by purchase and conveyance, in 1870. She diedjn 1871, having made a last will and testament, by which she devised the lands to her children, issue of her marriage with W. E. Eoss. The husband was made executor, and entrusted with the control of the property, and the use of its revenues for the support and education of the children, and the maintenance of himself during life.

There was marriage, seizin by the wife of a freehold of inheriteuce, birth of issue capable of inheriting, and survivorship by the husband. So that there was a concurrence of ail the common law incidents to make this estate complete and consummate. Marriage conferred upon the husband the right.to the rents, issues and profits of his wife’s real estate during the coverture. He became seized jure uxoris with her of her freehold estates, with the possession and pernancy of the issues and profits.

The birth of issue,- capable of inheriting, advanced the husband’s rights still further, and enlarged his title into a life estate, which initiates from that moment, and becomes a vested estate, capable of being alienated, or subjected to his debts. There is not a feature of contingency about it. It begins or becomes initiate on the birth of issue, and continues so long as the husband lives. It is well settled in the law, that from the time this life estate vests, it becomes inseparable from the inheritance, and cannot be restrained or prevented by the act of the wife or any other person. Greenleaf Cruse, title, Curtesy, 153, § 17; Paine’s Case, 8 Bep., 34 ; 1 Hill on Beal Estate, 79, 322. In this particular, it is like dower. By marriage and seizin of the husband, the right became fixed in the wife, and could not be cut off or defeated by any act of the husband. Neither can the wife, when curtesy is vested by marriage, seizin and birth of issue destroy the husband’s estate. The birth of the issue, at any time during the coverture, constitutes the husband tenant by the curtesy, and is such title as he may stand upon in the action of ejectment. Jackson v. Johnson, 5 Cow., 95. In Ellsworth v. Cook, 8 Paige, 643, the application was to subject this estate to the husband’s debts ; it was held that this initiate estate continued during the whole period of his life, if he survived his wife, and could be reached by creditors. The interest of the wife must be such, that the husband may have seizin in her right. Bacon Ari., title, Curtesy. If there be an outstanding particular freehold estate which does not fall into the inheritance during coverture, there is not such a seizin and right of immediate possession as will support the estate of curtesy. Redus v. Hayden, 43 Miss., 633-6; Malone v. McLaurin, 40 Miss., 162. The seizin must be accompanied with possession, or the right of immediate possession, and such entry could be made by the voluntary act of husband. Ib. Tenant, by the cuitesy initiate, is seized of a freehold estate in his own right, and the interest of his wife is a mere reversionary interest, depending on the life estate of the husband. Foster v. Marshall, 2 Fos., N. H., 491, 493; Matlock v. Stearns, 9 Vt., 327, 335. Marriage gives to the husband a freehold interest during the joint lives of himself and wife, and husband and wife are seized in right of the wife. Co. Litt, 67 a; ib., 351.

Let us now turn to the statutes in force at the time Mrs. Eoss acquired the property and made her will, and see what alterations have been made in the common law, and how the rights of parties have been affected thereby.

These statutes, declaring the property rights and powers of married women, were designed as far as they go, to emancipate the wife from marital disability, and confer upon her legal rights, capacities and powers. Hence, they confer the capacity to acquire and hold legal estates, to bind and make them liable by legal contracts. The character of their estates, and the extent of the innovation upon the common law will be more clearly dis cerned by a reference to the statutes themselves :

“Every species and description of property, whether real or personal * * * which may be owned by or belong to any single woman, shall continue to be the separate property of such woman as fully after marriage as it was before.” The same character is impressed upon after acquired property, with a complete right to acquire it. Such property shall not be liable to the debts of the husband, nor shall it be sold, conveyed or in any manner incumbered by the husband unless the wife join in the conveyance. Art. 32, pp. 335, 6, Code, 1857. The rents and income shall inure to the wife as separate property, and shall not be liable for the husband’s debts. ‘ She may invest her means in purchasing property; and. should the husband use her money to buy in his own name, he is declared to be her trustee. Art. 24 She may rent her lands, and make any contract for the, use thereof. Her property is liable for all the debts she may incur, under the 25th art., including her ante nuptial contracts, and satisfaction may be had out of it. The husband is not liable for her ante nuptial debts, nor for her debts after marriage if she hold separate property under the act.

The 28th article is, “ if the married woman shall die seized or possessed of real estate acquired or held under this act, nothing herein contained shall deprive the husband of his right of curtesy to the extent allowed by law.”

It admits of most grave and serious doubt, whether, aside from the 28th article, the curtesy estate had not been entirely abolished by the anterior provisions of the statute ; abolished not by express words, but by conferring such powers and rights, as incidents of the wife’s tenure of her real estate, as entirely swept away the essential foundations upon which this estate rested. The estate arises by operation of law out of the circumstances, and upon the conditions already named. Under the statute the husband has no seizin, jure uxoris, or jointly with her. He cannot receive or appropriate the rents; he cannot make a lease; he has no possession sui juris. Neither the land itself, nor its income, can be taken by creditors. But, on the contrary, he or his representatives may be called to an account by the wife or her representatives, for the rents, profits and income of her separate property. (Art. 28, last clause.)

The birth of issue in no wise affects the wife’s estate, or advances the husband’s rights. The statute strips him of every interest, present and prospective, which marriage gave him at the common law. But her real estate shall not be subject to his debts, but satisfaction may be had out of her real estate for her debts incurred before and after the marriage. The land may be sold under legal process, and thus destroy the initiate estate, which, it is said, is vested in the husband.

The 28th section must be so construed as to bring all the several parts of the statute into a harmonious system, and thereby to carry out the plan and purposes of the legislation.

The central idea in the scheme is, that the husband shall not take and enjoy the real estate of the wife, nor its rents, as allowed by the common law, nor shall marriage give him her personal property. Since he has been deprived of these marital rights, he shall not be responsible for her debts contracted before or after marriage. Though the wife may take the income and make leases, yet she shall not sell and convey or mortgage without the husband’s consent.

The 28th section is careful in the use of language. It is, “ if the wife shall die seized or possessed of lands,” etc. It confines the husband’s curtesy to the lands of which the wife died seized. If they have been conveyed away by deed of husband and wife; if they have been sold under legal process for the wife’s debts, then, the right of the husband does not arise.

To put the legislative intent in the abstract, it might be thus expressed. If the real estate has not been disposed of in any mode allowed by law, then the husband shall have curtesy. That thought is embraced in the words, “ died seized or possessed.”

By the act of 19th February, 1867, the legislature took another step towards the enlargement of the capacities of married women. Its title is, “ To amend the law, heretofore in force, respecting the property rights of women.” The first section is, “ that hereafter a married woman may, without the consent of her husband, dispose of her separate estate by last will and testament * * * unless the contract of marriage entered into before or at the time of marriage, or by the terms of the conveyance, devise or bequests under which she acquires and holds the same, the power so to dispose of her separate estate shall be expressly, or by plain implication, excluded.” The language conferring the power is broad, general and absolute, subject to a restriction which would apply, without being named, equally to persons not under disability.

The intent is plaiD, since ike wife already has the power to possess, control and enjoy her property during coverture exclusively, may charge it with debt, and with the consent of the husband, sell or incumber it. She shall have the additional power and discretion to dispose of it by will; nor shall there be any restriction upon the right unless imposed by the instrument under which she holds.

We would interpret the statute as conferring the capacity to alienate by devise, and as enabling her by will to change the destination which the real estate, of which she died seized or possessed, would otherwise have. Construing all the statutes of pan materia, together, so that each several provision may have effect, the 28th art. of the statute of 1857, as modified by the act of 1867, retains to the husband a curtesy in the real estate of his wife,, which has not been alienated by their joint conveyance, which has not been sold by creditors oí the wife under legal process, which have not been devised by the wife. This construction would leave the husband’s right to take effect on all the lands of which the wife “ died seized,” and would fully satisfy the words-of the law. At the same time it would subserve what would seem to be the manifest intent of the law maker. There is close analogy between the dower and curtesy estates, as regulated by statute.. Dower is confined to real property, of which the husband died “ seized and possessed,” and to lands not conveyed for a valuable consideration and in good faith, by the husband, without the wife’s relinquishment. At common law, the right to dower became initiate on the seizin of the husband, and could not be divested by any act done or suffered by him. By statute it is limited to lands whereof the husband had seizin at his death, and to-those alienated without valuable consideration. The husband, may cut off the contingent right by such alienation. The statute-makes dower contingent, so does it the estate by the curtesy. The husband is enabled to alienate, for value, and defeat dower. The wife may charge her separate estate with debts, and thus indirectly make creditors to cut off curtesy; so she may devise it and thereby defeat it.

As we interpret the statutes, the right of the husband does not become initiate of a life estate on the birth of issue, in the sense of being fixed and vested, but it is contingent to take effect on the death of the wife in ail the lands of which she died seized or possessed, that is, not disposed of during coverture, and not devised by will.

This view is supported by the analogies of the law. An estate conveyed in trust, to permit the wife to receive and enjoy the rents and issues, with a power of disposition of the property by will, is such an equitable estate, as that the curtesy of the husband may attach, if the wife dies without making an appointment. But if she makes a will, the husband shall not have curtesy. Morgan v. Morgan, 4 Gill & J., 395. But if the intention is clearly manifested that he shall be excluded from the curtesy, he shall not take. Bennet v. Davis, 2 P. Wm., 316. See also Follett v. Tyrer, 14 Sim., 125. The mere fact that the wife shall have exclusively the income of an equitable estate of inheritance does not exclude the husband from curtesy.

If the instrument which creates the equitable estate, in the wife, gives her the power of appointment by deed or last will, and she executes the power, the husband’s right is cut off. If she does not, it attaches. This doctrine, well supported by authority in courts of equity, is in effect, the result attained by the statutes. It was said by the court in Bank of La. v. Williams, 46 Miss., 632, “ that a married woman (unless the instrument creating her estate otherwise provides) holds her property, whether owned at her marriage or acquired since, as if the 23d, 24th, 25th, 26th and 27th articles of the Code, pp. 335-6 were embodied in the instrument conferring the property opon her.” The statute impresses itself as conditions of her tenure; defines the terms by which she holds, and her power over the property. If land be conveyed to a married woman in 1870, we must consult the law then in force, to determine the extent of her power to charge, and dispose of it. If at that time and at the date of the death of Mrs Eoss, in 1871, the statute declared that she might at her discretion without her husband’s consent, devise her land, then that power was annexed to her title and estate, quite as completely as if it had been conferred by the deed under which she acquired it. If she exerted the power in such wise, as to create an interest in her devisee, incompatible with a curtesy in the husband, that estate never arose. The absolute power of disposition conferred by the statute of 1867, is inconsistent with a vested initiate tenancy by the curtesy. That estate, under these statutes, has lost its vested feature on the birth of issue, and becomes contingent, on the event of the wife’s dying intestate, without having the seizin and title pass from her in her lifetime, and without disposition by last will.

These views are in the main sustained by the case of Billings v. Baker, 28 Barb., 844-376. The third section of the New York statute of 1849 is like ours,- except that it confers upon the married woman power to “ convey” as well as devise, and does not in express words retain the curtesy estate. It was held, that the effect of the statute was to abolish that estate altogether. The 28th article of the Code of 1857 still preserves it, contingently, however, as we have seeD.

The case in 28 Barb, went further than the prior adjudications, in holding that the statute abolished curtesy, although the wife had not made a “conveyance” or “devise.” It was well settled that if she did “ convey ” or “ devise,” curtesy was cut off. Hurd v. Cass, 9 Barb., 366; Clark v. Clark, 24 Barb., 582-3. Our statute allows curtesy if the wife has not made a “ devise ” or her seizin has not otherwise been lost, by some voluntary act, or act suffered by her, so that she did not die seized of the property.

It follows that W. E. Eoss is not tenant by the curtesy.

The decree of the chancery court is affirmed.