28 Barb. 343 | N.Y. Sup. Ct. | 1858
delivered the following opinion, at the special term.
The facts set forth in the moving affidavits are sufficient to show that it is in furtherance of justice to grant this motion, and it must therefore be granted, unless the defendant Perry» P. Billings, as the husband of the plaintiff, has either a present or prospective interest in the plaintiff’s real estate. If he has such an interest, then the motion should be denied. At common law prior to the statutes of 1848 and 1849, the husband would have been tenant by the curtesy initiate, in such an estate; he is so still, if the estate was owned or acquired by the wife previous to the passage of those statutes, if the marriage was also prior to that time. If those statutes have either by their express provisions, or by necessary implication, abrogated prospective tenancy by the curtesy, then the defendant Billings has no interest in this action. Tenancy by the curtesy, is where a man marries a woman, seised at any time during the coverture of an estate of inheritance, in severalty, in coparcenery, or in common, and hath issue by her, born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life “ by the curtesy of England.” (4 Kent’s Com. 27.) The revised statutes, (vol. 1, jp. 754, § 20,) expressly recognize the existence of this estate, arid provide that “ the estate of a husband, as tenant by the curtesy, shall not be affected by any of the provisions of this chapter’.” Four things are necessary to constitute this estate, viz: 1. Marriage; 2. Actual seizin of the wife during coverture ; 3. Issue born alive j and 4. Death of the wife. (4 Kent,
If the reasons for the introduction of this peculiar feature of the common law called “ tenancy by the curtesy ’ in estates in land, had ceased to exist, if in practice the law failed to be useful; or if it had become an evil, or was inapplicable to our American system of laws, it presented a reason, perhaps a necessity, for a remedial act to abrogate it, and such remedial statute is then to be construed with reference to the condition of things thus presented. One of the reasons for the introduction. of this estate into the English system, was, that the husband being the natural guardian of his child, was entitled to the profits of the land in order to maintain the child; but a more prominent and important idea of the system was, the reason that then existed in England in regard to all estates in land under the feudal law; to wit, that the husband having become dignified by having an interest in lands, was bound to do homage to his superior lord, and the interest being once vested in him, it was the policy of the feudal system, not to suffer it to determine during the life of the husband, as otherwise the lord might lose the homage that was his due from the land.
To this estate the husband never had any natural right. (Bac. Abr. Tenant by the Curtesy.) Sir J. Jekyl says, “This estate has no moral foundation to support it.” (Green. Cruise, tit. 5, § 3.) Grabb, an English writer, says, “ The term curtesy is derived from courtesie, Latin curialitas; to signify suavity or urbanity, to denote that the custom sprung from favor to the husband, rather than from any right.” By thus becoming the vassal or tenant of his superior lord, he was permitted “ by the curtesy of England” to attend his lord’s court, or curtís, (as it was called,) and to do him homage, by reason of having become the husband of a wife who had died possessed of an estate in lands, after issue born. Such were the reasons, and such the basis for the introduction of such a title to lands into the law of England. This common law
There is no doubt that the legislature had the power, either to modify or abrogate this estate, at their pleasure, if it was regarded as public policy so to do. It was so held in Sleight v. Read, (18 Barb. 165,) and Moore v. Mayor of New York, (4 Seld. 114.) “ It is not,” says Denio, J., “ a part of the marriage contract which cannot be affected or impaired by statute, but it stands on the foundation of positive law, as one of the institutions of the country.” From this we see 1st. That the legislature had power to abrogate this estate as to all prospective cases; 2d. That every reason for the introduction of this estate into our system of law, except only that of the maintenance and support of the children, is entirely inapplicable to the public policy of this country, and tó the institutions of this state; and 3d. That the provisions contained in those acts were intended to introduce a most important, if not an entire change in the existing law of this state in that particular. The question then is, have future estates of tenancy by the curtesy been abrogated by those acts ?
The answer to this question depends mainly upon the construction to be given to (what seems to be) the very plain language of the act. In determining such construction, we must be guided by those sound rules of interpretation, which long experience and the settled wisdom of the courts have uniformly approved. This, as has been said, is to be regarded as a remedial statute; and its language is to be so construed as to give effect to the end the legislature had in view, and if
The second section was intended to carry out the same provision as the first, in relation to estates of married women. It has been already judicially passed upon in various reported decisions ; but its application to the property of the wife who was married at the time of the passage of the above act, is not a question necessary to be examined here, except so far as it goes to show the intent of the legislature.
The third section, as amended in 1849, provides that any married female may take by inheritance, or by gift, grant, devise or bequest, (from any person other than her husband,) and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner, and with Wee effect, as if she was unmarried, and the same
The next section of the act of 1849 authorizes trustees, who hold estates in trust for married women, to convey such estates to them, subject to certain regulations, for their sole and separate use and benefit. It might here be sufficient to inquire whether the estate of a female before marriage is not absolutely her’s for life, forever—without condition—without qualification—and subject by law to be inherited directly from her by heirs. It is so, heyond all question. Whatever estate she then has in it, hy the first section of the act of 1848, shall continue her sole and separate property as if she were a singlefemale. This could not be, if any other person can acquire an interest in it. If the intent of a statute is to be construed in the same manner as the intent in a devise or settlement, the case of Hearle v. Ch'eenbank, (3 Atk. 695,) is in point. The testator in that case devised an estate to trustees, “ to and for the sole and separate use of his daughter Mary, wife of Wm. Winsmore, during her life, and at her disposal, and not to be subject to the debts, power or control of her husband.” And though a husband was entitled to a curtesy in a trust estate, yet Lord Hardwicke said: “ The father, whose estate it was, has made the daughter a feme sole, and has given the profits to her separate use; therefore, what seisin could he, (the husband,) have during the coverture ? He could neither come at the possession, nor the profits. To admit that the husband was seised, would be directly contrary to the father’s intent.” And he held that the husband could not have curtesy. What single quality or incident that constitutes a tenancy by the curtesy is left, or remains to the husband, under this act ? A tenancy by the curtesy, vested on the birth of a child. (2 Bl. Com. 127. 2 Cowen, 440.) This quality is now destroyed. It was an estate liable to be sold on execution to pay the husband’s debts. (Schermerhorn v. Miller, 2 Cowen, 439.) This quality is also destroyed. The husband, as tenant by the curtesy, could alien and convey such estate. He has no such
The language of this act is entirely inconsistent with the idea that there is a tenancy for life existing in another person. Is' there any such tenure or right as tenancy by the curtesy, attached to the estate of a single female ? And .does not this statute in the most express language declare that the wife holds this estate “ as if she were a single female” ? How then does he acquire a right therein ? Does, not the same statute declare that this estate “shall not be subject to the disposal of her husband”? What estate ? Hot his estate, but her estate; he has none in it. Is this estate, which was her’s absolutely, and which the statute says shall so continue, limited to her for her life ? By what law ? The legislature had no power to limit an estate that was absolutely her’s. How then does the husband acquire any rights to it ? By the omission to give it to any body else ? Are estates to land acquired by omissions in this way ? He acquires no express statute right to it. He has no natural right to it by common law. (2 Bac. Abr. tit. Tenant by the Curtesy.)
The effect of this statute then, is that the useless and ridiculous fiction of “tenancy by the curtesy of England” is abrogated, and no longer remains to disfigure our system of common law, or the republican institutions of this state. Hor is the argument ended here. There are negative words enough in this statute alone to settle this question of intent, without going farther, to wit: “This estate (of the wife) shall not be subject to the disposal of her husband'.” If after her death, it becomes his by this English fiction, would it not, in the very face of the statute, be subject to his disposal? “Hor be liable to his debts,” says the statute. If he has the use of it for his life, could he not pay his debts with it ? Is this old remnant of an obsolete system still to be regarded as stronger
I think it more important, at this day, that the courts should adhere strictly to the sensibly expressed intention of the legislature, than to permit old maxims, applicable only to ancient observances of an obsolete system of feudal tenures, to control the construction of our own abrogating statutes. Our rights, under remedial statutes, ought to rest upon a surer basis than this. Even in England, it was held that in case of a remedial act, every thing is to be done in the advancement of the remedy that can be done consistently with any construction that can be put upon it. (Johnes v. Johnes, 3 Dow. 15.) ISTor is the view I have taken of the construction of this statute, without high authority. In Westervelt v. Gregg, (2 Kern. 211,) Denio, J., said: “I am constrained to believe that the true meaning of the section is, (§ 2 act of 1848,) that all property which the wife owned at the time of the marriage, and that all such as she had acquired by gift, devise or otherwise, during the coverture, but before the passing of the act, should thereafter be deemed to be vested in her as though she was a feme sole, to the exclusion of any title which by the pre-existing laws the husband had acquired in it, by virtue of the marriage relation.” To understand the whole intent of the legislature, the whole three sections of the act of 1848, must be read together, and by such a reading, no doubt can remain of the intent. We are at least bound to suppose that the legislature employed in this act such language as would most directly and aptly express the object they had in view; that they intended what they said, and the court, instead of looking beyond the act, for a construction to limit or cripple its remedial intent, will best discharge their duty by giving to words that obvious meaning which is consistent with the ordinary and common sense understanding of them. Why, if it was not the clear intent of the legislature to abro
Divesting then this question, as I do, of all reference to common law tenures, which were intended to be abrogated,
With all my veneration for the common law, whenever its existence is found to be inconsistent, not only with the just and equal rights of a class of citizens, but in direct conflict with our remedial statutes'—when I find its existence has neither a natural nor a moral basis to sustain it—I must find a more solid reason for its retention than the ancient custom of rendering homage to a superior lord, in order to create any reverential awe that shall restrain me from an examination as to its usefulness, or hesitation about construing a statute sensibly, for fear of derogating from the ancient glory of that system.
I have come to the conclusion above expressed, but I admit, . not without much embarrassment, on account of the highly respectable authorities deciding the same question the other way. I refer to Hurd v. Cass, (9 Barb. 366,) per Mason, J., at special term; and Clark v. Clark, (24 Barb. 581,) per Marvin, J., also at special term; the latter, however, basing his opinion mainly on the former. But what is a little singular, the last authority cited by Justice Marvin, is directly against the conclusion he himself arrives at, to wit: Crabb on Real Property, § 1106. In his conclusion, the learned judge also says: “ If the legislature had .intended to deprive the husband of his rights by the curtesy, when the wife had not conveyed or devised the estate, it should so have expressly declared in the act.” With all deference, I think if the legislature after passing an act, which in its express terms did take it away, had intended still to retain it in the system, they would have said so, as they did in the 1st R. S. 754, § 20, in which such a reservation seemed to be necessary, in order to secure it from abrogation. I find no reported general term decisions directly upon the question. I find nothing in the case of Colvin v. Currier, (22 Barb. 372,) in conflict with the
The motion must be granted on the payment of costs of opposing the motion, it being a motion for a favor.
From the order of the special term there was an appeal to the general term, where the motion was argued by
A. Pond and A. Bockes, for the defendants.
H. W. Merrill, for the plaintiff.
The court are unanimous in affirming the order of the special term, but upon the question on which almost entirely it was argued at the special term, and again here, to wit: whether Perry P. Billings the plain
It is exceedingly important that this question should have an early and a correct settlement, on account of the frequency of the occasions on which the question must necessarily arise in future practice. It is certainly most natural that different and various constructions should be given to the meaning of this statute, for the reason that it makes important changes in the law in regard to the marital relation, so far as the rights of property are concerned. These somewhat extraordinary innovations in established law in that regard, are in conflict with such opinions as time and long experience had adopted as settled, and which had become familiar to the courts and to the bar; but it now being a law, and proceeding as it does from the highest source of power authorized to enact laws, it is the duty of the court to give it due regard, and to construe it according to its true spirit and intent; and it is therefore not at all surprising that at first, like all other measures of sudden and violent reform, it encounters the prejudices arising from long established and fixed habits of thought; from a committed feeling of regard and veneration for ancient forms, precedents, maxims and adjudications, and be subjected to a jealous criticism of its new and somewhat unfamiliar forms of expression. The highest court of this state, however, has already broken ground in this particular, and has declared in regard to it, as follows: “The object of the statute .is remedial; to remove the disability which the common law attached to coverture, and to enable a married woman to have something which she might call her own, and to do something for her own subsistence, and that of her offspringand also, “that the act should have a liberal construction.” (Darby v. Callaghan, 16 N. Y. Rep. 79.) In the case of Wadhams v. The American Some Miss. Soc. (2 Kern. 415,) Denio, J., says: “The statute of 1848 was the commencement of a new system respecting this branch of domestic relations.” Con
It is argued that these statutes must be construed with reference to the law as it existed at the time of their passage, and that the rights of husbands as they existed before the passage of these acts, are, by the rules of construction, to be carried into and incorporated with the provisions of this new law, for the reason that there is no abrogation of such rights in the express language of the statute.
It becomes important then, for the purpose of duly weighing this argument, to inquire what were the respective rights of husbands and wives to estates, prior to the passage of the acts of 1848 and 1849. First, in regard to married women, it may be said that ever since the day of Lord Hardwicke, and even before that time, in the English court of chancery, and also in our own, separate estates of married women, with their right to dispose of them as femes sole, independent of their husbands, have been recognized, and they have been permittéd to hold such estates divested of the husband’s right, “jure uxores,” or by the curtesy, either through the intervention of trustees or without. Sometimes the husband in equity was deemed and constituted such trustee, without having other interest therein. (Sturgis v. Corp, 13 Ves. 190. 1 Ves. jun. 517, 303. Peacock v. Monk, 2 Vesey, 190. Fettiplace v. Gorges, 1 Ves. jun. 46. Bell on the Laws of Property, 513. See cases cited by Spencer, C. J., in Jaques v. Methodist Epis. Church, 17 John. 578, 9; North American Coal Co. v. Dyett, 7 Paige, 15; 2 Bright on Husband and Wife, 214; Strong
This class of estates includes vested remainders, and all other estates of that character, such as estates where there has been no actual seizin, and estates that would entitle the husband to curtesy. (4 Comst. 28.) And all such estates pass by the deed of the wife, with her simple acknowledgment, without a private examination. (Id.) All this simplicity of form, and this exercise of equitable power, has been attained, not without the severest struggles with the jargon of black letter lore, and the stale precedents and ancient maxims and traditions handed down from age to age, derived from the barbarous customs of a bygone era. And notwithstanding the estate of curtesy is an estate that has ever been favored with a tenacious and unreasonable partiality by the common law of England; so much so as, even to hold that it existed in trust estates, where there were no words of exclusion in the devise or deed creating the estate; yet. as early as the year 1738, Lord Hardwicke, one of the most distinguished of English chancellors, held that where, in a settlement, or devise of an estate to a feme covert, to hold as a feme sole, and to her separate use, in language clearly expressing the intent to exclude the husband from curtesy and sevdn, the estate descended directly to her heirs, and the husband had no interest therein. (Roberts v. Dixwell, 1 Ath. 607.) This case was followed by alike decision in Hearten. Greenbank, (3 Ath. 695,) decided in 1748. These two cases, however, were but following the decision of Bennett v. Davis, in the year 1725, by the master of the rolls,
Having shown the equitable condition, let us next inquire what were the legal rights of the husband, in the real estate of the wife, before the passage of the acts for the more effectual protection of married women, and what effect those acts have upon such rights.
At common law, a man by his marriage to a wife who had an inheritance in lands, became possessed of a freehold interest, “jure uxoris,” that is, he and his wife became seised of the estate in her right. This marriage and seizin gave to him a title to the rents and profits during coverture. This estate, according to Lord Coke, he shall receive as “ governor of the family.” This incipient title he possessed independent of the birth of issue. Indeed the tenancies by the curtesy initiate and consummate, are but continuations of this first estate. (Barber v. Root, 10 Mass. R. 263.) This primary freehold interest of the husband was assignable by him, and was subject to be taken on execution for his debts. This was an estate enduring for the joint life of himself and wife. Upon birth of a child, the second step towards perfecting it, the estates of tenancy by the curtesy became vested and formed the estate
Taking this view of the loss, in effect, of her whole estate— of her unjust, unnatural exclusion therefrom, and her consequent helpless condition—it furnishes, in my judgment, a sufficient explanation for the form or style of the title of the statutes in question, to which much of the argument was .devoted; and sufficiently shows that the estates which these statutes were intended to protect, is the estate, which, except for her marriage, would be entirely her’s, but which Toy her marriage, she would, in effect, entirely lose. The process of" reasoning by which it is demonstrated that an act which refers to this estate as “ the property of married women,” by one general term, plain to the commonest understanding, can be construed to mean a divided portion of it, to wit, an estate in her during her life, I cannot appreciate. Why is it, if this divided portion of her property, only, was meant, that this plain spoken statute did not say so in terms ? True, there might have been added to the title the words “ and to restore them to their natural rights,” but it Was far better to have that provision in the body of the act, than in the title. The title is no part of the act, and can never be used to control or restrain any positive provision of the act.
But is it not the whole estate that this statute permits a married woman to take ? And is it not this whole estate that
Thus stood the common law of England in relation to such legal estates, and thus it became the common law of this country, first by adoption, and next by a statute recognizing its existence, (1 R. S. 754, § 20,) when the acts for the more effectual protection of married women were passed, in 1848 and 1849. These acts, we may safely assume, were intended by the legislature to effect some change, in regard to the estates of married women, or they would not have been passed. What changes they did effect are now questions for the courts. They could work no changes upon existing estates. The rights as to them, had become vested. (Westervelt v. Gregg, 2 Kern. 211.) They must therefore apply to prospective estates, according to the general rule of construing statutes. Indeed it may be said as a necessity that they must apply to the future; for at the time of the passage of those acts, it can hardly be said that a married woman had any legal estate that she could call her own, to which they could apply. Her personal estate, on her marriage, became her husband’s absolutely. The rents and profits of her real estate, as we have seen, became his during coverture, and by the birth of a child he took a vested estate. These rights of the husband all came by the English common law adopted here; not one of them is either a natural or a moral right of the husband, or was ever conferred by any statute of this state; nor are they embraced in or conferred by the marriage contract. These estates of the husband, by the common law, were made incidents of the marriage contract. This contract and the subsequent birth of a child, were the conditions upon which these estates
The initiate estate of curtesy, in our own courts, has been held a sufficient estate to recover ‘upon, in an action of ejectment. In Jackson v. Johnson, (5 Cowen, 95,) in an action of ejectment, decided in 1825, Sutherland, J., says: “It is clear that the birth of a child, at any time during the coverture, whether before or after the defendant’s possession, would constitute Cooper tenant by the curtesy of all the lands of his wife, of which, during the coverture, she was so seised, as to support such an estate.” In a later case in the court of chancery of this state, (Ellsworth v. Cook, 8 Paige, 643,) a married woman’s real estate had been sold on a decree in partition, and a creditor’s bill was filed, by a creditor of her husband, to reach the husband’s interest in the fund, as tenant by the curtesy, and there was a question raised as to whether there had been such a seizin as to entitle to curtesy.” Chancellor Walworth said : “I am satisfied that he had such a seizin in this case, of two-thirds of his wife’s share of the premises, as to make him a tenant by the curtesy initiate, so as to entitle him to a continuance of his estate in those two-thirds during the whole period of his own life, in case he survived his wife.” This case is of equal authority perhaps to that of any other. The time of the vesting of this estate, does not appear to me to be an open question. If the estate has not been abrogated, the time of vesting has not been changed! Our revised statutes have fixed the time of its vesting to be as we have claimed it. At the birth of issue, the husband is then, in the language of the statute, in a condition that the estate vests. (1 R. S. 723, § 13.) “An estate is vested when there is a person in
What kind of estate of curtesy then, would that be, that the wife at her will and pleasure, can convey, devise and destroy P If it is vested she cannot destroy it. In regard to this estate, perhaps no one question is better settled than this: that from the time of the vesting of the estate by marriage, seizin and the birth of issue, it becomes a right inseparable from the inheritance, that cannot be restrained, prevented or destroyed, by the act of the wife or of any other person, or by any proviso or condition. (Greenl. Cruise, tit. Curtesy, p. 153, § 17, marginal paging 143. Paine’s case, 8 Rep. 34. Mildmay’s case, 6 id. 41.) And Hilliard, an American writer of high reputation, on real estate, says: “that by the birth of issue, the husband gains an initiate title, which cannot afterwards be divested by act of Grod.” (1 Hill. on Real Estate, p. 79, § 22.) As in dower, no act of the husband can divest his wife of her estate, after marriag eand seizin, so in curtesy, no act of the wife could defeat curtesy after it becomes vested by marriage, seizin and birth of issue; nor did even adultery forfeit this estate as it did the estate of dower. I have searched the books in vain to find authority for an estate of curtesy, which depends on the volition or act of the wife. Such a quality is no part of the definition of an estate by the curtesy of England. If it now possesses such a quality, it is an estate by the curtesy of Hew York, and not of England; and its definition and character are yet to be made and written in the boobs. I think the conclusion irresistibly follows, that a statute which allows the wife to sell and convey perfect title to real estate, during coverture, after seizin and birth of issue, with like effect as if she was unmarried, has abro
But still another insurmountable difficulty arises to the claimant of curtesy, since these statutes. To entitle him to this estate, he must have been seised of the estate “jure uxoris” during the life of his wife—not merely a seizin in law, but a seizin in deed; (Co. Litt. 29 a;) hat is, actual possession as distinguished from the right to possession. Formerly, the actual seizin of the wife created a freehold estate in him, and he was thereby seised in her right, and when the estate of curtesy vested, he continued the inheritance by virtue of his seizin. How any seizin by him during the life of the wife, is an impossibility. In the case of Hearle v. Greenbank, (3 Ath. 695,) Lord Hardwicke held that, because the husband had no seizin either in law or equity, during the coverture, he was therefore not entitled to curtesy. In Bac. Abr. tit. Curtesy, it is laid down, “ the wife must have such an interest, that her husband may have seizin or possession in the nature of a seizin in her right. " (Hill, on Real Prop. 76. 1 Cruise,
There is hut one other feature in this case that I design to notice by way of answer to the argument of the plaintiff’s counsel. It is this; “ that inasmuch as there are no words, in these statutes, of express exclusion of the husband’s curtesy in terms, their rights remain precisely as they did at common law under an executory trust estate, created for the sole and separate use of the wife for life, without words of exclusion of the husband in the inheritance. That if the trust was executed, so that the inheritance vested in the wife, the husband had curtesy; and if the trust was executory, the title remaining in the trustees, to be conveyed to the heirs of her body at her death, then the husband had no curtesy.” Such I concede was the common law, even here, prior to these statutes; and Roberts v. Dixwell, (supra,) proves this to be so; and the reason given for the decision in that case by Lord Hardwicke, I think is the same that should determine this question, to wit: That during the coverture there was no seirÁn in the husband and voife. And (Joke upon Littleton, 30 a, was cited in that case to show that the husband must have some right in the lifetime of his wife, to entitle him to curtesy, because the estate of curtesy commences in her lifetime and not at her death; because, says Lord Hardwicke, citing with approbation the law as above, “ My Lord Coke says, that to make a tenancy by the curtesy, there ought to be a right in the husband inchoate in the life of the wife.” (1 Atkyns, 609.) These statutes execute their own purpose. -Trustees are dispensed with, and husbands excluded. The machinery is simple, the intent clear.
From the influences of such considerations, I held before, and seeing no reason to change those views, I hold now, that our natural progress in knowledge and intelligence, our adr vanced social and political condition, our changed system of ■government, our better and more full appreciation of equal and natural rights of every class and condition of citizens,
In my former opinion I took the position that before the passage of these statutes, where it was the evident intent in making a settlement of an estate upon a married woman, that she was to hold it as a feme sole, the husband could not have curtesy; and I cited Hearle v. Greenbank, (3 Atk. 695,) to prove that proposition. Upon more examination, I hold that case to be undoubted law. It would be indeed a monstrous doctrine for the courts to publish to the world in this day, that this estate of curtesy possesses “per se” such a subtle, inveterate, yet mysterious tenacity of existence, that by no intent of parties, by no power of language that can be employed in deed or statute, can an estate be created free from its anomalous power; and yet the argument of the appellant’s counsel verges upon this absurdity. In the most thorough review that I have been able to give to the cases of authority cited on this question, I have experienced no such embarrassment or difficulty as was insisted on, of a conflict of authority. Instead of finding the case of Hearle v. Greenbank overruled, or even doubted as authority, or that there existed any conflict of cases with it, upon the point for which it was used, (as was alleged,) I find it not only abundantly, but in every subsequent case, fully fortified and sustained. Neither Sir John
In my former opinion, I placed my decision substantially upon the ground that the intent of a remedial statute, in relation to the estates of married women, should be construed in the same manner as the intent of a devise, marriage settlement, or trust estate, created for the same purpose, if the language was either identical, or the same in substance; and that the manifest intent in both, should be the criterion to determine. The cases above cited, it will be seen, fully sustain that posi■tion. These cases could be multiplied if necessary; let one other suffice, Which contains the substance of all. In Stanton v. Hale, (2 Russ. &, Mylne, 175,) Lord Chancellor Brougham said: “ It was clear that no particular form of words was necessary, in order to vest property iü a married woman, to her
Still another argument against this view of the statute has been most strenuously insisted on, upon the argument; that is, if it had been the intent of the legislature to have changed or abrogated the common law, or to have cut off the husband’s curtesy, they would have so declared in terms, in the statute itself. Such an argument has its force, and is to be duly weighed. It has less force, however, when applied to a remedial statute, than it might to some others. But this argument, when applied to this statute, proves far too much; for in the very argument submitted, the learned counsel admit that it has abrogated a part of the common law in relation to this same estate, to wit: that the incidents of enjoyment and alienability, during the life of the wife at least, are entirely cut off, and yet did not say so in terms. '"But the courts have already gone far beyond this concession of the counsel, and we are not at liberty to overrule it. In Blood v. Humphrey, (17 Barb. 662,) the general term of the 6th district have held that those statutes of 1848 and 1849, have not only repealed so much of the revised statutes as require a married woman in making an acknowledgment of a deed to be examined separately, if the deed relates to estates acquired since that law, but they also held that they have abrogated much of the prior common law in regard to their rights. Mason, J. says: “The legislature intended to remove the entire disability, which both the common law and the statute had thrown around married women,- not only as regards their right to take and hold, free and independent of their husbands, but also to remove the obstacles which the law had interposed against their conveying both by grant and devise, and to place them, so far as the lands which they hold in
If, then, the position is sound that the intent of a remedial statute for a given purpose, and the intent of a devise or agreement to effect the same purpose are alike controlling in giving them construction, and if identical or equivalent language is to be held to mean the same thing in each, then these statutes which assimilate these two estates of equity and of law, and establish thereupon one uniform and equal basis, exempt from the technical embarrassments which have so long been tolerated from veneration of ancient forms and precedents, should receive from the court such construction as shall give full effect and operation to their provisions, and so that their design and object be not evaded, and when superadded to this, the statutes are found to establish benevolent provisions, such as are consistent with the demands of an enlightened and progressive age, in harmony with the long continued efforts of the courts to mitigate in some degree the inequalities and injustice of the common law in relation to married women and their immediate heirs, and to prevent the squandering of, their estates by improvident husbands, it should be the willing duty of the courts to sustain and give efficiency to their just and equitable provisions. They should enter upon the duty of its construction, with the same remedial spirit in which the legislature entered upon their duty of enacting the law, by discarding all the unnatural maxims and precedents and clogs to progress. Thus sustaining its letter and intent, it will become a kind of magna charta, in the restoration of natural rights, too long and too unreasonably withheld.
Having come to the conclusions above expressed, after a careful consideration of the arguments presented, and the authorities to which I have had access, I have been unable
The order of the special term should be affirmed.
Rosekrahs, J., dissented.
Order affirmed. •