| Ill. | Jan 15, 1870
delivered the opinion of the Court:
This was a bill in chancery, exhibited by Sarah E. Pool, suing by her next friend, in the DeWjtt circuit court, to which John Blakie and Margaret Blakie were made defendants. The object of the bill was to obtain partition of a tract of land therein described, on the allegations that Sarah L. Blakie Yas •seized, in her life time, of an estate in fee simple in the land, and that she devised the same, by her last will and testament, to her children, the complainant being one, and the defendant, Margaret, the other. It is also alleged that John Blakie was the husband of Sarah L. Blakie, and was in possession of the land, cultivating the same, and appropriating the proceeds to his own use, refusing to pay any rent to complainant, he claiming the same as tenant by the curtesy.
John Blakie put in his answer to the bill, admitting the principal allegations therein, and setting up his right to use and occupy the premises as tenant by the curtesy, he having married Sarah L. Blakie, and to whom was born a daughter, the defendant, Margaret.
The court, on the hearing, dismissed the bill, and the complainant brings the record here by appeal, assigning this decree as error.
It appears by the record, that Sarah L. Blakie, the mother of the complainant, was the daughter of George L. Hill, dnd during her coverture with John Blakie, her father conveyed to her, by deed duly executed, the land in question, “ in consideration of natural love and affection, and for settling and assuring the premises for such purposes, and upon such conditions as are hereinafter mentioned, expressed and declared, for and concerning the same.” The habendum clause is as follows: “ To have and to hold the aforesaid premises and hereditaments, etc. unto the said Sarah L. Blakie, her heirs and assigns forever, to the end and intent that the same shall and may be for her sole and separate use, benefit, behoof and disposal, notwithstanding her present or future coverture, free and clear of and from interruption, intervention and control of her said husband, John Blakie, or any future husband she may have, and without being in any way or manner subject, responsible or liable to or for the existing or future contracts, debts, liabilities or engagements of her said husband, the said John Blakie, or of any future husband she may have.”
This deed bears date March 27, 1860, the grantee and her husband, John Blakie, then living on the land, and who continued to reside thereon up to the time of the death of Mrs. Blakie, in 1867. Mrs. Blakie, on the twenty-fourth of March, 1864, made her last will and testament, by which she devised all her estate, real and personal, to the heirs of her body, who are the appellant and the defendant, Margaret Blakie.
It is claimed by appellant that, by the deed, the grantee took an estate for life only. This position is not tenable. It is very clear, Sarah L. Blakie took an estate of inheritance in fee simple.
All the conditions necessary to constitute an estate by the curtesy in John Blakie are manifest—marriage, seizin of the wife, issue, and death of the wife—but the question arises, can a husband be tenant by the curtesy of real estate conveyed to the wife for her sole and separate use, and with power of disposal, and who has disposed of it by will, duly executed and attested ? This is a new question in this court, and we have found it one not free from difficulty, and on which the authorities appear to differ.
It is a rule in construing deeds or wills, that the intention of the grantor or testator, as manifested by the words of the writings, in connection with surrounding circumstances, must be carried into effect. How, what was the intention of the grantor ? Did he intend to exclude the husband from the curtesy ?
It seems to us the intention of the grantor is so plainly expressed in the deed as to place it beyond question or controversy. The intention is most clearly manifested, to exclude the husband from any participation or interest in the estate granted. The expression is clear and distinct that neither her present husband nor any future husband should have any estate in the land. It is true, the words that the husband, present or future, shall not be tenant by the curtesy, are not used, but equivalent words are, manifesting most clearly the design and purpose of the gift, that it should be placed in such a position that the creditors of her husband could not disturb her in the enjoyment of the estate. This they could do, if it should be held the husband has a life estate therein. That is such an estate as can be sold on execution. It seems to us it was the intention of the grantor to prevent such a result, by excluding the husband from any interest whatever in the premises, and though more apt words to express such intention might have been used had the deed been prepared by a professional conveyancer, still the intent is unmistakable. This intent must be carried out by the courts, if in so doing no rule of law is violated or sound public policy disturbed.
But few cases have been cited on the argument. The leading case for appellant is Bennet v. Davis, 2 Peere Williams, 316. There, testator’s daughter, having married a tradesman in London, who was in debt, had devised to her certain lands in fee for her separate and peculiar use, exclusive of her husband, to hold the same to her and her heirs, and that her husband should not be tenant by the curtesy, nor have the lands for his life in case he survived, but that they should, upon the wife’s death, go to her heirs. The testator died, and the husband of his daughter became a bankrupt, and the commissioner assigned the lands devised, to the defendant, Davis, in trust for the creditors, and upon Davis bringing his ejectment, the bankrupt’s wife preferred her bill against the assignee and her husband, to compel them to assign over this estate to her separate use, and it was decreed accordingly, the court holding, there being an apparent intention and express declaration that the wife should enjoy the lands to her separate use, by that means the husband, who would otherwise be entitled to take the profits in his own right during the coverture, is now debarred and made a trustee for his wife.
Other eases to the same effect might be referred to, and among them, Stokes v. McKibbin, 13 Penn. St. P. 267, where it was held, a husband was not entitled to curtesy in an estate held in trust for the separate use of his wife, as a feme sole, so that the same shall not be in the power or subject to any debt, contract or engagement of the husband.
We think both reason and justice require such an interpretation should be given to the deed as to exclude the husband from all claim to any estate in the premises in question.
The decree of the circuit court dismissing the bill is reversed, and the cause remanded, with directions to that court to proceed in the cause according to the prayer of the bill.
Decree reversed.