Middleton v. Steward

47 N.J. Eq. 293 | New York Court of Chancery | 1890

The opinion of the court was delivered by

Van Syokel, J.

The bill in this case was filed to enjoin attachment proceedings against the husband’s estate by the curtesy in lands of which the wife died seized. The only question to be decided is, whether a married woman can by will, with her husband’s consent, dispose of his right of curtesy in her land at her death ? Since the Married 'Woman’s act there is no estate by curtesy initiate, but at her death, issue having been born, estate by the curtesy devolved on the husband. Colgan v. Pellens, 19 Vr. 27.

At common law a married woman was incapable of devising lands. Her oapacity to make such devise is now regulated by statute, which precludes her from disposing by will of any interest or estate in real property, to which her husband would be entitled by law at her death. The right of the husband to a life estate at the wife’s death became vested, and could not be divested in any mode that would not be efficacious to pass a fee simple. If the fee had been in the husband, I think no one would suppose that a devise by the wife, with the husband’s assent under seal, would pass the title to her devisee. The doctrine of estoppel cannot be invoked to override our statute concerning wills. That statute prescribes the mode in which a will shall be executed to pass real estate. The proposition in this case is to pass the estate of the husband by a will not executed in any form by himself, but by the will of a third ^person. A devise can operate only upon the estate of the devisor. No form of consent can make it effective to dispose of the estate of another. A devise takes effect only on the death of the devisor, but here the effort is to convey the real estate of A by the will of B, and to make it operative in the lifetime of A.

Admitting the devise of the wife to be effective, we must concede that a devise by a third person, with like assent of the husband, would be of equal force. Such a mode of passing title to lands will find no support in any adjudicated case under the common law. No case has been found in which it is even suggested. It is equally devoid of any statutory authority to ‘uphold it.

The case of Beals’s Exr. v. Storm, 11 C. E. Gr. 372, is relied upon in the court below. At the time of the decision in that •case the effect of such a testamentary disposition of real estate was not involved in the cause.

The case of Silsby v. Bullock, cited by the chancellor from 10 Allen 94, rests upon express legislation. The Massachusetts statute provides that the will of a married woman devising her separate real estate shall not operate to impair or destroy her husband’s right as tenant by the curtesy without his written assent. 'The Massachusetts court held that, with the husband’s assent, the wife had an unrestricted right to dispose of her lands as if she were a feme sole. Our statute expressly provides “ that such interest or estate shall remain and vest in the husband in the .-same manner as if such will had not been made.”

The estate of the husband must therefore be regarded as-unimpaired, until he executes a conveyance which at common law will be effective to pass his title. Plis joining with the wife in her lifetime in a deed would bar his estate, for in that case the-wife would not die seized. But a mere consent to a will was not competent to divest the estate of the husband or to enlarge the-estate of the wife.

The decree below should be reversed.

For affirmance — None.

For reversal — The Chief-Justice, Depue, Dixon, Magie,. Scudder, Van Syokel, Brown, Clement, Cole, Smith,. Whitaker — 11.