Schmidt v. GardnerSchmidt v. Gardner
In the year 1911 Alfred Schmidt, one of the defendants, and his wife, Florence Schmidt, purchased the premises in question in their names as husband and wife and thus became the owners of said premises as tenants by the entirety. In 1922 the defendant, Alfred Schmidt, neglected to support his wife and family and his wife brought suit for maintenance and support against him. A final decree was entered in this court on January 24th, 1923, in favor of Florence Schmidt whereby defendant, Alfred Schmidt, was ordered to pay his wife the sum of $10 per week. The said defendant, Alfred
Complainant, Alfred W. Schmidt, contends he owns the premises in question free and clear of any right of curtesy of his father, Alfred Schmidt, by reason of the conveyance in which his father and mother both joined to Sarah L. Conklin, his grandmother, and by reason of the fact that his grandmother held the premises in question for his mother and his mother devised the same to him. He also contends
“Sec. 1. That any married woman who is living in a state of separation from her husband, under and by virtue of the final judgment or decree of any court, when such judgment or decree is founded upon her application for such separation, may, at any time during the continuance of such separation, convey, mortgage and lease or devise any interest, estate or right that she may have in any real property, except such as came to her by gift, through or from her said husband, in the same manner and with the like effect as if she were sole and unmarried. (Rev. 1877,p. 639.)”
This section, however, does not appear to apply to the facts in this case for the reason that there was no decree of this or any other court produced before me whereby the said Florence Schmidt and the defendant, Alfred Schmidt, were living in a state of separation. While the parties were living separate and apart and while this court had directed the defendant, Alfred Schmidt, to maintain and support his wife, Florence Schmidt, and by consent of the parties this court had directed him to convey his interest in said premises to a trustee in lieu of such maintenance and support, they could at any time without further ceremony resume the marital relations. Vice-Chancellor Fielder held in the case of Mullen v. Mullen, 98 N.J. Eq. 90, affirmed by the court of errors and appeals in Ibid. 727, that in the absence of any statute a married woman could not make a valid conveyance
“* * * but it has uniformly been held in this court that the acts authorizing conveyances by married women who are living in a state of separation from their husbands authorize a conveyance only of the interest of the wife, subject to whatever interest the husband may have.”
I know of no equitable principle which would estop the defendant, Alfred Schmidt, from claiming curtesy. The question of curtesy has been passed upon by this court in many of our early cases and a case which has direct bearing on the present situation is that of Cushing v. Blake, 29 N.J. Eq. 399, affirmed by the court of errors and appeals in 30 N.J. Eq. 689. I have, therefore, reached the conclusion that the defendant, Alfred Schmidt, the husband of Florence Schmidt, deceased, is entitled to curtesy in the premises in question.
The only question, therefore, left to be determined is whether or not Alfred Schmidt is entitled to curtesy in the whole of said premises. The premises were conveyed to the trustee, Sarah L. Conklin, on April 11th, 1924. I, therefore, have reached the conclusion that the common law rule as to curtesy applies since the acts of the legislature changing the interest of the husband in the real estate of the wife were passed in 1927 and 1928.
I will, therefore, advise a decree in accordance with these views.