79 Pa. 376 | Pa. | 1875
delivered the opinion of the court, January 6th 1876.
A husband is entitled to his curtesy in the real estate of inheritance of his deceased wife, when' he elects to take it against her last will. In considering the legislation upon the power of a married woman to devise her real estate, the fact must not be overlooked, that his curtesy estate was one arising at common law in the lifetime of his wife, and becoming fixed in him at the instant of her death. It was, therefore, not a subject upon which her devise could operate. As soon as issue is born alive capable of inheriting, the husband becomes tenant by the curtesy initiate, and the estate vested by the birth cannot be determined either by the death or coming of age of the infant. “After issue born” (says C. J. Gibson), “ he has a freehold in his own right, for which he is separately bound to do homage to the lord, whose tenant he then becomes, and the wife cannot forfeit for treason:” Lancaster County Bank v. Stauffer, 10 Barr 398. Our Intestate Act of 8th April 1833, extended the husband’s curtesy by saving to the husband his right as tenant by the curtesy “which (it says) shall take place, although there be no issue of the marriage, in all cases where the issue, if any, would have inherited.” Under that Act, the estate becomes initiate immediately without the birth of issue. The act relating to wills, passed on the same day, excepted married women out of the general power conferred of making wills, and provided specially: “ That a married woman may, under a power legally created for the purpose, dispose of her real and personal estate by will or appointment-in the nature of a will; and that any married woman may, with the assent or license of her husband, dispose of-her personal estate by will.” Thus stood legislation when the Married Woman’s Act of April 1848 was passed. The 7th section of that act enacted that “ any married woman may dispose by her last will and testament of her separate property, real, personal or mixed, whether the same accrues to her before or during her coverture. Provided, that said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband.” Thus, over her own personal estate (which was the subject of this legislation), whether real, personal or mixed, she became invested with an absolute power of disposition. It was no longer confined to personalty, nor was the assent or license of her husband required. But the curtesy estate of her husband having its inception in her lifetime, and being fixed • eo instante at death, was looked upon as not within her power of
In' the present case, the estate being realty only, the husband elected to take his curtesy, which he clearly had a right to do. The learned judge thought so too, but under a misapprehension of certain expressions in Dickinson v. Dickinson, supra, he supposed that this court thought otherwise. But that was a. case of devisavit vel non relative to personal estate, and the questions discussed were the wife’s power to make a will of her own property, chiefly personalty, in disherison of her husband, and the effect which a failure to establish the will would have upon the transmission of her estate at law. No question was discussed as to the husband’s curtesy, and the expression as to the absolute power of the wife to will away her property from him before the passage of the Act of 1855, had reference only to the property which she controlled, and not to the husband’s pre-existing estate by the curtesy.
The absolute decree of sale of the real estate must, therefore, be reversed, but as nothing is intended in this decision to interfere with any proper remedy the legatees under Mrs. Clark’s will have to recover her legacy, so as not, however, to disturb the husband’s estate by the curtesy, we simply reverse the decree of sale, leaving the Orphans’ Court to take such further or other- proceeding as may be lawful and proper upon the petition of Saloma Hebblewhite, the legatee.
Decree reversed with costs to be paid by the appellee, and the record ordered to be remitted to the court below.