151 Ark. 161 | Ark. | 1921
(after stating the facts). According to the allegations of the complaint, which are to be taken as true upon demurrer, Joseph E. Parrish and Emma Parrish were husband and wife when the first deed to the property in question was executed to them, and it was the intention to convey them an estate by the entirety. A mistake was made in the description of the property which was corrected by a new deed executed to Joseph E. Parrish alone. It was represented to Emma Parrish that the new deed was to her husband and herself as in the first instance, and she did not know any difference until after the death of her1 husband.
It is the contention of counsel for the defendants that our Married Women’s Acts have abolished estate by the entirety, and several cases from the Supreme Courts of other States are cited in support of their contention.
It must be admitted that the authorities on his question are divided. The leading cases bearing upon each side of the question are cited in Baker v. Stewart, 40 Kan. 442. In that case the majority opinion holds that neither the statutes relating to married women, nor the statutes relating to descents and distributions, have changed the rule of the common law with respect to the rights of the survivor in estates by the entirety.
The contrary view is maintained in the dissenting opinion, and the leading authorities on that side of the question are cited. The statute under consideration, in most of the cases cited on either side of the question, is very similar to the provision of our Constitution of 1868, and of our present Constitution relating to married women and giving them the right to control and manage their own separate property.
In Robinson v. Eagle, 29 Ark. 202, it was held that at common law the husband and wife are seized of the entirety in land conveyed to them jointly; and, upon the death of one of them, the estate remains to the survivor. It was further held that the rule of the common law was not changed by our statute, or the Constitution of 1868. It was said that the constitutional provision only relates to the separate property of the wife and was intended merely to preserve it from liability from the debts of the husband.
The provision in our1 present Constitution is similar, and estates by the entirety have been upheld under it. Branch v. Polk, 61 Ark. 388; Simpson v. Biffle, 63 Ark. 289; Roulston v. Hall, 66 Ark. 305, and Davies v. Johnson, 124 Ark. 390.
But it is contended that the rule of the common law has been changed by an act of the Legislature of 1919, entitled “An Aot to B-emove the Disabilities of Married Women in the State of Arkansas.”
The section referred to is sec. 5577 of Crawford & Moses’ Digest, which reads as follows:
“Every married woman and every woman who may in the future become married shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State, as though she were a feme sole; provided, it is expressly declared to be the intention of this act to remove all statutory disabilities of married women as well as common-law disabilities such as the disability to act as executrix or administratrix as provided by par. 6 of Kirby’s Digest, and all other statutory disabilities.”
' The statute does not pretend in direct terms to change or modify the common law in any particular with respect to an estate by the entirety. It is claimed, however, that the act impliedly changes this rule of the common law. We cannot understand how the act changes the rule of the common law in this regard. The Legislature passed the act for the benefit of married women, ■ and not to take away from them any of their rights and privileges. Without the act, a married woman holding with her husband an estate by the entirety, would, when he dies, take the entire estate if she was the survivor. The act in question has nothing to do with the estate which either the husband or the wife should hold, but only with the control by married women of their own separate property and of their right - to contract and to sue and be sued and act in other respects, as if a feme sole. The common-law incidents of marriage are swept away by express statutes only. For instance, a husband still hqs his common-law rights of tenant by the curtesy.
Provisions of the Constitution or statutes to enable married women to hold property to their separate use or to sue and be sued and to contract and be contracted with do not in terms apply to an estate granted to husband and wife, and have no effect upon real estate conveyed to husband and wife jointly.
It is also contended 'by counsel for the defendant that the deed in question did not convey an estate by the entirety to Joseph E. Parrish and Emma Parrish because they are not mentioned in the deed as husband and wife.
We do not think that this makes any difference. The complaint alleges that the parties were husband and wife at the time the deed was executed, and it is the conveyance of the property to the husband and wife jointly which creates the estate by the entirety. Chandler v. Cheney, 37 Ind. 391; Hulett v. Inlow, 57 Ind. 413; 26 Am. Repts. 64, and case note; and 15 A. & E. Ency. of Law, 846-7. See also Davies v. Johnson, 124 Ark. 390.
In Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, the court expressly said that our statutes enfranchising married women were not intended to and do not affect estates by the entirety.
Counsel for the defendants urge us to overrule this case in this respect; but, as we have already seen, the holding is in accord with onr previous decisions hearing on the question, and we adhere to it. Tenancy hy the entirety is a joint tenancy modified hy the common-law doctrine that husband and wife are one person in law, and can not take by moieties. The rule has not been ■changed by our statute enacted to enhance the rights of married women; for the reason that such acts do not expressly change or modify the common-law rule, and, having been passed to accomplish a different purpose, do not do so by necessary implication. These acts no more destroy her union with her husband than does a settlement of property upon her for her separate use.
It follows that the decree must be affirmed.