147 S.E. 26 | W. Va. | 1929
The wife of this defendant died in March, 1924, intestate, and the owner of considerable property including the house in which the two had lived. The defendant continued to occupy the house and as her administrator received the rents from the other property. This suit was brought in February, 1925, by her other heirs for the purpose of ascertaining and partitioning the intestate's property, assigning the defendant his curtesy, and for an accounting of the rents he had received. In that accounting the defendant was charged with rent for his occupancy of the mansion house prior to the assignment of curtesy. This appeal involves the correctness of that charge.
An estate by the curtesy in West Virginia was purely statutory during the period the defendant occupied the mansion house. It was made so by Chapter
Section 8, Chapter 65, Code, provides "until her dower is assigned the widow * * * may hold, occupy and enjoy the mansion house and curtilage without charge." The defendant says that since the widow may occupy the mansion house without charge, the widower is accorded the same benefit under the statute of 1921. The plaintiffs say this right in the widow is a special statutory privilege and is no part of the dower estate, citing 2 Minor's Institutes (4th ed.) 158. *706
That authority does not support plaintiffs' contention in its entirety. Therefore a review of the history of this privilege becomes pertinent. It is called by the law writers "the widow's quarantine". Some authorities state that this right did not exist at common law, but was the boon of Magna Charter (A.D. 1215) to widowhood. Minor on Real Property (2nd ed.), section 317; Thompson on Real Property, section 850-1; Washburn Real Property (6th ed.), p. 230-1; Lomax Digest, Vol. 1, Chap. 3. They have seemingly overlooked, however, important ancient authority on the subject. The first English law book was written by the Chief Justiciar, Glanville, about the year 1175 A.D. A passage therefrom relating to the rights of widows is translated as follows: "And where the husband dwelt without claim or contest, let the wife and children dwell in the same, unassailed by litigation." Beames' Glanville, p. 131, note; Ancient Laws of Eng., p. 415. Lord Coke writes: "But some have said that by the ancient law of England the woman should continue to hold a year in the husband's house, within which time if dower were not assigned she might recover it: and this certainly was the law of England before the Conquest." Coke's First Institutes, Vol. 1, Chap. 35, section 36 (32b). Upon the strength of these statements other authorities treat quarantine as a common law right. Am. Eng. Ency. of Law, p. 149; Reeves on Real Property, section 463; Bacons Abridgements, 3rd Vol., p. 194-5; Scribner on Dower (2nd ed.) Vol. 2, p. 53;Perine v. Perine,
In the year 1705 the General Assembly of Virginia passed the following statute: "And be it further enacted, That the widow of any person dying intestate, shall be endowed of one full and equal third part of all her deceased husband's lands, tenements, and other real estate, in manner as is directed and prescribed by the laws and constitutions of the kingdom of England: And till such dower shall be assigned, it shall be lawful for her to remain and continue in the Mansion house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same: Any law, usage, or custom, to the contrary, in any wise, notwithstanding." See 3rd Henning's Statutes at Large, p. 374. This "enlargement of her common law quarantine" (Carnall v. Wilson, supra, p. 66) was retained without material change in a re-enactment in 1748. Henning, supra, Vol. 5, p. 448. It was legislatively classified with dower in 1785 under an act entitled "An act concerning the dower and jointures of widows." Henning, supra, Vol. 12, p. 162. It is included in chapter 94 of the acts of 1792 in an act entitled "An act to reduce into one, all acts and parts of acts relating to dower." I find no change in the statute until the Revised Code of 1849, which tersely stated that until dower was assigned, the widow "may hold, occupy and enjoy the mansion house and curtilage without charge." See sec. 8, Ch. 110. That right is repeated in the same language in the Virginia Code of 1860. It was incorporated verbatim in the West Virginia Code of 1868 as section 8, Chapter 65, the chapter being entitled "Of Dower, Jointure and Curtesy." It has been retained in our Code in the same phraseology and in the same setting ever since. See section 8, Chapter 65, Code 1923.
The purpose of the right is obvious. It is a humane provision assuring the widow a haven until her dower is assigned. For this reason it has been well termed "a statutory substitute for dower." Shelton v. Carrol,
So we find that quarantine has been the immemorial handmaiden of dower; and for one hundred and fifty years it has been specifically recognized by the Legislatures of Virginia and West Virginia as "concerning", as "relating to", and as "of" dower. The right attaches only to dowable land and can be claimed only by a tenant in dower. 10 Am. Eng. Ency. Law, p. 149; 2 Scribner, supra, chap. 3, sec. 5; Holt v. Holt,
The word "dower" as used in Magna Charta and as used in the Virginia and West Virginia statutes enlarging the widow's quarantine, relates exclusively to the life estate of the widow in the dowable real estate of her husband. Hills Adm'rs. v.Mitchell,
In 1925, Chapter
The plaintiffs complain because, as they allege in their bill, the defendant's possession of the mansion house was exclusive. The right given by the statute to the widow to hold,occupy and enjoy the mansion house clearly signifies the right of exclusive possession. Under a statute no more favorable to the widow than our own, the Supreme Court of Alabama held: "The widow is entitled to the premises until her dower is assigned; she may reside on them, or lease them and receive rents; and neither the heir nor any one else who claims the inheritance or estate from the husband can defeat this right of the widow without, having her dower assigned to her." Inge v. Murphy,
In a decree entered in this cause on November 20, 1926, the defendant was adjudged entitled to an estate for life in one-third of all the real estate of his wife. In another decree entered February 15th, the commissioner was directed to state an account between the parties, taking into consideration as a part thereof fair rent for the mansion house. The plaintiffs say that either of the above decrees "settled the rights" of the defendant and were not appealed from within eight months. The first decree specifically relates to the life estate of the defendant and has no relation to the tenancy-at-will under which he held the mansion house. (Graves, supra, sec. 314.) The second decree was interlocutory and directory, and while made in preparation of the later adjudication that the defendant pay the rent, was not such an adjudication in itself.
Plaintiffs further complain because certain repairs to the mansion house amounting to $761.87 were charged to the estate instead of to the defendant. The items in question are for papering and painting the mansion house, repairing its roof, floors and plumbing, and for trimming the trees on its lot. Plaintiffs rely upon the absence of affirmative evidence that these repairs are permanent. There is testimony, however, that the building was in a bad state of repair. We cannot say that the repairs were not necessary to the proper use and preservation of the property. If necessary, as the allocation of the charges by the lower court indicates, the defendant was not personally liable. Spinning v. Spinning,
Other objections are raised by plaintiffs to the procedure practiced by defendant in the circuit court, but we find them without merit.
The decree of the circuit court will accordingly be reversed in so far as it charges the defendant with the rent of the mansion house prior to the assignment of curtsey.
*711Reversed and remanded.