63 Me. 518 | Me. | 1874
The first question for determination is whether the premises, the possession of which the plaintiff seeks to recover in this process, are to be deemed her property in her own right— such property as under the statutes of our State, she, though a married woman, may manage, sell, convey or devise without the joinder or assent of her husband.
The position of the defendant, who is the plaintiff’s son, is, that the plaintiff’s husband, under whom he holds, has a life estate therein.
The property was once the homestead farm of Crispus Graves, the plaintiff ’s father, who died testate in March, 1850, leaving a widow, and an only child, (this plaintiff) who was married to her present husband and gave birth to the defendant prior to the passage of the act of March 22, 1844. The will of Crispus Graves
The defendant insists that this clause refers to the statutes regulating the descent and distribution of real and personal property as they existed at the time of the execution of the will in 1837, and not to those which were framed subsequently but prior to his death in 185.0 ; that it must be deemed the intention of the testator that his son-in-law should have the life estate which he would have had if the statutes in force when the will was made had remained unchanged till the.testator’s death; in other words, that the will, upon this point, speaks from the date of its execution, and not from the time when it took effect.
But we are of the opinion that when a testator directs that any portion of his estate shall descend or be distributed according to the laws of the State in which he lives, he must intend the laws that are in force when his will takes effect; and when he adds to such directions the sig:iificant words “in the same way and manner as though this last will and testament had not been made,” he emphasizes that intention in a mode too clear to be misunderstood.
It is not reasonable to suppose that the testator intended to set his heirs and executors groping, at the hazard of mistake, among the ill-remembered laws of the past, to ascertain the disposition he had made of his property, when he had kept his will by him through the various changes of the statutes, and left it at last to'
The suggestion in the will that the testator believes his daughter to be in comfortable circumstances and to stand in need of no special provision in the will was inserted to show that while his only child and heir was not forgotten, he deemed it his first duty to provide for his wife during life, and cannot be understood as signifying a preference of his son-in-law to her. One of the cardinal rules of construction is that “the heir is not to be disinherited without an express devise or necessary implication.” Jarman’s General Buies given in note. 1 Bedfield on Wills, 425.
As the statutes stood at the time of Crispus Graves’ death, any married woman, whether married before or after the passage of the act of 1844, might “become seized or possessed of any property real or personal by direct bequest, devise, gift, purchase, or distribution, in her own name and as of her own property, exempt from the debts or contracts of her husband.” Public Laws oi 1847, c. 27, §§ 1 and 3. This necessarily excludes the husband from a life estate therein.
Under B. S., c. 61, § 2, only rights acquired before the passage of the statute of 1844, March 22, are protected. As to the property here in dispute, the wife acquired no right therein until the death of her father in 1850. The husband has no interest therein and no right to control it except by permission of the plaintiff.
Nor does the coverture of the plaintiff preclude her from maintaining this process against one holding under the husband.
The wife’s agents acting under her directions with regard to property held by her in her own rig]it have always been protect
Thus much by way of protection against a wrongful intermeddling by the husband with the wife’s property, the law clearly gives, and although the decisions are adverse to the maintenance of a suit by the wife directly against the husband for such wrongful acts when the coverture is properly pleaded, we find nothing that militates against her right to maintain suits against third parties, wrongfully claiming to hold or appropriate her property under color of authority from her husband.
Even when she brought suit against her husband and a co-trespasser jointly, though the husband was discharged by reason of the coverture, the co-trespasser, acting presumably under his directions, was held liable. Smith v. Gorman, 41 Maine, 408.
Were it otherwise, the wife’s property could have no efficient protection against any disposition which the husband might see fit to make of it, however unjustifiable or injurious.
Even if the coverture of the plaintiff had been regularly pleaded in abatement, it could not have availed this defendant.
Exceptions overruled.