47 Ill. 425 | Ill. | 1868
delivered the opinion of the court:
This case is submitted on the appellant’s brief.
The principle has been too long settled to be now contested, that if an estate in fee be granted to a man and his wife, they are neither joint tenants nor tenants in common. The reason is, as husband and wife are but one person in law, they cannot take the estate by moieties, but both are seized of the 'entirety, so that neither the husband nor the wife can dispose of any part of the estate without the assent of the other, but the whole must remain to the survivor. 2 Blackst. Com. 182.
This doctrine' was fully recognized by this court in Mariner v. Saunders, 8 Gilm. 113.
It is the doctrine of the common law. Thomas’ Coke on Lit. 575.
Appellant, however, insists that our Statute of Wills, by the forty-sixth section, changes this rule, and the statute must control.
' The.same statute was in force when the decision in Mariner v. Saunders was made, and it was not then supposed it changed the common law principle, nor does it. The estate of Mrs. Hoff, whatever it was, could not descend to her heirs,for, by the very deed creating the estate, it survived, on her death, to her husband. It was her estate,' sub modo only. Had Hoff died, it would have become hers absolutely, and on her death descended to her heirs according to section forty-six. The estate she took, in its inception, was one which, by possibility,,-might become her husband’s. That possibility did occur, and the whole estate is vested in him.
. ‘Upon"the other point made, it is sufficient to say, there is no evidence, from the facts stated and admitted by the dernur- * Fer, of 'an intention to create a trust. Admit the money was .furnished by Mrs. Hoff with which the land was bought, she .■"had a clear right to confer an interest in it upon her husband, and,such an interest as should, in the event of her death, make him the absolute owner of the whole.
We can perceive no legal or equitable ground on which appellant’s claim can be based. The demurrer to the bill was properly sustained, and the decree dismissing the bill must be affirmed, as there is no equity in it.
Deoree affirmed.
