Kerner v. McDonald, 60 Neb. 663

Kerner v. McDonald

60 Neb. 663 | Neb. | 1900

Nor val, C. J.

This case involves the question of whether, in this state, the doctrine of entirety of estate is in force. This law grew out of the relation of husband and wife, as the same existed at common law, and it was a necessary corollary of that statute; for at common law, the moment a woman married, she ceased to exist as an entity, but simply became merged in her husband, and came wholly under his dominion. Of course, if at marriage she ceased to exist as an entity, she lost the ability to own anything, hence out of this legal fiction, of necessity, arose the doctrine, that if there be granted by one instrument to two persons, who are husband and wife, an estate it is owned by both of them, not by moieties, but as a-whole, and will on the death of one belong, as if from the date of the grant, wholly to the survivor. We will discuss the questions thus presented as if no statutory enactment ever existed *670on the subject other than chapter 15 of the Compiled Statutes, whereby it is provided that so much of the common law as is applicable, and not inconsistent with the constitution of the United States, etc., is adopted and declared to be the law within this state. Is the law of entireties applicable in this state? In other words, is it in harmony with the marriage relation as it now exists? It is urged that the whole of the common law exists by force of this statute, except where it has been expressly changed by legislative enactment, unless it be inconsistent with the constitution of the United States, the organic law of the territory (and presumably of the constitution of the state). With this statement we can not agree, for the term “as is applicable” has also a meaning, and it is evidently intended to mean, so much as is applicable to our institutions. Now, it is evident that the whole of the common law of husband and wife is not now and never has been in force in this state. Take, for instance, that common law rule whereby the husband was, under certain circumstances, permitted to inflict corporal punishment upon his wife. It would hardly be contended that such rule of law existed here, in the absence of special statutory enactment. The principle is too repugnant to all modern ideas of the relation of husband and wife to have a place in our jurisprudence. Hence, it is plain that not all common law of England is in force in this state. We do not imagine that such would be declared to be the law anywhere, yet it was once, without dispute, the common law of England. As a matter of fact, law is not a fixed science, but advances or retrogrades with the advancement or retrogression of society; and the law permitting corporal punishment of the wife by the husband has ceased, because we are a more highly civilized people than were our ancestors, and such a thing would now be looked upon with abhorrence by all right thinking men. Many principles of law have changed with the passing of time, through the gradual change of thought on the part of society and *671the flux and change of social organization; many others have ceased because the reason which called them into existence has ceased, and it seems to us that to this last named principle may be referred the law of estates by entirety. The old common law idea of the oneness in the relation of husband and wife is fast disappearing. The identity of the woman is not lost in her husband; she is no longer under his dominion or control. On the contrary, in law, husband and wife are now considered as equals, the relation as a dual equality, not as one, and that one very much the husband. Hence, there seems to be no better reason for holding that a conveyance of an estate to two persons, they being husband and wife, by one instrument, creates an estate in entirety, than to hold that the conveyance of an estate to two persons not husband and wife will create a like estate, and not an estate. The reason for the law of entirety having ceased, with the reason, the law itself is no more. It would seem clear that, taking the modem view of the marriage relation, there is no reason for the doctrine of estates in entirety, but that estate created in both husband and wife should at once be assimilated to like estates created in other persons not husband and wife. We are of the opinion, that in the absence of statute declaratory thereof, the doctrine of estates by entirety is repugnant to our institutions, and to the American sense of justice to the heirs, and, therefore, not the common law of this state. The district court having held in harmony with the views herein expressed, the judgment is accordingly

Affirmed.

Note. — “It is true, that at one time the common law favored, hy reason of the right of survivorship, title by joint tenancy. For it thus, as was supposed, tended to combine or unite the feudal services, consolidate tenures and strengthen the feudal connection. And this was its policy. Of course, the reason would cease with the abolition of the tenures; and neither in England nor in this country are these estates favored.” Hoffman v. Stigers, 28 Ia., 302, 306. Affirmed in Bader v. Dyer, 106 Ia., 715, 719.