Schmidt v. Raymond

148 Wis. 271 | Wis. | 1912

Barnes, J.

Tbe appellant was entitled to curtesy in tbe real estate owned by bis deceased wife at tbe time of ber death. Sec. 2180, Stats. (1898). Tbe only question involved is whether the right of her creditors to have her estate subjected to the payment of her debts is paramount to the right of appellant. The question must be answered in the affirmative. Sec. 3874, Stats. (1898), provides that, where the personal estate of a deceased person is insufficient to pay debts and expenses of administration, the personal representative may mortgage, lease, or sell his real estate, excepting the homestead, to pay such debts and expenses^ on obtaining a license so to do in the manner provided. No exception is made in favor of the husband who is entitled to an estate by the curtesy. It is argued, however, that the same rules of law are applicable .to dower and curtesy, and that the dower interest of the wife cannot be reached by creditors of the husband. There was a close analogy between dower and curtesy at common law, but this analogy has been destroyed by statute. Curtesy- initiate has been abrogated in this state. Secs. 2342 and 2180, Stats. (1898). Ey the first section the wife during coverture has the absolute right to convey her real estate without the husband joining in the conveyance, and he is not entitled to an estate by the curtesy in lands so conveyed. By the second section the husband is given an estate as tenant by the curtesy, or curtesy consummate, only in such lands as the wife died seized of and as were not disposed of by will. The wife has an inchoate right to dower in lands owned by her husband, of which she cannot be deprived by any act of her husband without her consent evidenced by a deed of conveyance or in some other appropriate manner. Sec. 2159, Stats. (1898). It is beyond his power to defeat that interest by will. By operation of law, as soon as marriage occurs, the wife acquires an inchoate interest in the real estate of her husband owned by him at the tjme of marriage, and also in lands thereafter acquired by him. The husband acquires no interest in the Mnds of his wife prior to her death. She may convey or devise her lands and entirely defeat his right to curtesy. So it is apparent that dower and curtesy do not stand on tbe same footing, in so far as the rights of creditors are involved. It is quite significant that, while sec. 3885, Stats. (1898), provides for the admeasurement of dower, in the event of it being necessary to sell the lands of a deceased husband to pay debts, no such provision is found in regard to curtesy. If the legislature had considered that the right of the husband by_ curtesy took precedence over the claims of creditors, no doubt a provision would have been made for the admeasurement of curtesy as well as of dower. The conclusion reached in this case is supported by the following cases decided elsewhere: Bennett v. Camp, 54 Vt. 36; Arrowsmith v. Arrowsmith, 8 Hun, 606; Johnson v. Minnesota L. & T. Co. 75 Minn. 4, 77 N. W. 421. The cases cited by the appellant, with possibly one exception, deal with the right of curtesy as it existed at common law, where the husband had an inchoate right in the estate of the wife during coverture.

By the Court. — Judgment affirmed.