In the matter of Frances M. Winne.

No change in the statute of distributions or of any statute respecting personal property, would affect the laws of descent of real estate. The act of 1867, materially changes the husband's interest in the deceased wife's personalty, and if that act had been somewhat older; if it had been originally incorporated into the Revised Statutes, no one would probably have thought of this supposed analogy between the rules that regulate the descent of real and the distribution of personal property left by married women at their death.

By the act of 1867, the absolute right of the husband to the deceased wife's personalty, whether that right formerly existed at common law, or was conferred by statute, has been abrogated, and he is now only entitled to claim his distributive share through due administration in like manner as the widow and next of kin.

By our statute of descents the whole interest of the wife in her estates of inheritance as such interest happens to subsist at the time of her death, then passes to her heirs at law. (1 Rev. St., 751, &c.) It was only the estate which the husband had acquired by the birth of issue of the marriage, in her lifetime, that he continued afterward to hold for the term of his own life, being in fact the mere prolongation of the estate already vested in him while the wife was living. All that he had thus acquired he still retained, after her death, and all that she retained until her death descended to her legal heirs.

The statute of descents was so sweeping in its disposition of the decedent's inheritance that it became necessary to insert a section exempting both the husband's curtesy and the wife's dower, two estates which alike began before the death of the persons from whose estate they were derived, from being abrogated. "The estate of a husband as tenant by the curtesy, or of a widow as tenant in dower, shall not be affected by any of the provisions of this chapter." (1 Rev. St., 754, § 20.)

This provision did not create or alter the husband's curtesy or the wife's dower but merely saved them where they had

In the matter of Frances M. Winne.

become previously vested. (See Revisers' notes to the section.) In other words the statute left them where it found them. Before 1848, every scintilla of the wife's interest in her estates of inheritance, as she owned the same at her death, passed to her heirs by virtue of statutory provisions, and her personal estate by other statutory provisions passed to her husband. As to her realty, the same statutes still give all her interest subsisting in her at her death to her lawful heirs. Considered from every point of view from which the subject is capable of being examined, it would appear that tenancy by the curtesy has been swept away in all cases, where the acts of 1848 and 1849 operate upon the wife's property. Those acts leave the whole quantity of interest in her real estate still in her at the moment of her death, in case of intestacy; at that moment the statute of descents, now as heretofore, takes it as she thus leaves it, and vests her entire interest in her heirs-at-law. that moment the husband has nothing, and at that moment he never, by the common law or by the statutes of this State, acquired any new estate not vested in him at a prior period. It can only be by the mere invention of a new species of estate, never before known, that the husband can now be allowed to deprive the wife's heirs of their lawful inheritance, and appropriate it to himself, or rather, as would oftener happen, to sacrifice it to the demands of his creditors. There is not much in the origin or characteristics of this species of estate which should induce the courts to struggle for its preservation.

At

The statutes which affect the question of its continuance ought to be interpreted somewhat in the spirit of the age which has demanded many like improvements in our laws concerning the condition of the wife and her rights of property.

Advancing civilization has rejected many cumbrous institu tions of the past as useless. Where are now those ancient tenures of homage, fealty, escuage, knightservice, frankalmoign, grand-serjeantry, petit-serjeantry, burgage, villenage, and by the verge? Buried and forgotten, or only remem bered as we remember there was a deluge. The feudal

In the matter of Frances M. Winne.

tenures are abolished. The time has come when this other effete relic of the feudal age, "the tenancy by the curtesy of England" is summoned to the dusty receptacle of its kindred. The abolition of this most anomalous and peculiar of those tenures, "whereby lands and tenements be holden," would serve as an additional land mark to indicate a true and substantial progress.

If tenancy by the curtesy initiate is destroyed, which is a proposition too plain to be controverted, how can curtesy now have any origin? Certainly, it is not within the province of the courts to manufacture new estates; that would be an act of pure legislation.

Tenancy initiate, and tenancy consummate, is one and the same estate. They cannot be separated so that one man can be vested with the husband's interest as tenant by the curtesy initiate, and another man with the husband's interest as tenant by the curtesy consummate.

Take the case of a conveyance by the husband himself, of his right by the curtesy initiate to a purchaser of that interest while the wife is living, or the case of a judicial sale of the same interest by a judgment creditor upon execution; afterward the wife dies; will it be pretended that the husband in such a case, gets by her death a particle of interest in her estate? That such purchaser owns the husband's estate as tenant by the curtesy initiate, and that the husband himself owns another interest as tenant by the curtesy consummate? If curtesy initiate and curtesy consummate are different estates, they may be vested in different owners, but their possible separation strikes the legal mind as an absurdity.

The first section of the act of 1848, is in terms prospective in its operation. The second section, in terms, applies to the property of any female already married when the act was passed. Both sections alike purported to exclude the rights of the husband. It was held in Westervelt v. Gregg, that the second section was unconstitutional, because it attempted to take away the already vested interest of the husband. But

In the matter of Frances M. Winne.

the effect of the language of the second section, aside from the constitutional difficulty, is precisely the same as to abrogating the husband's vested estate, as is the language of the first section in abrogating the husband's interest in future cases. In the case before cited, the Court of Appeals declared that the second section, if valid, excluded the husband's interest after the wife's death. "Had it, therefore, been competent," say the court, "for the legislature to enact a law thus affecting existing rights of property, the plaintiff would thereby certainly have been divested of any interest in the personal property of his wife; and the right of reducing her choses in action into posse зsion, or assigning or disposing of them for his own use, or of enjoying them in the event of her death, would have been taken away." (24 N. Y. R., 375.) And, further, the court add: "In the event of the wife's death, the husband does not take the choses in action not then reduced to his possession as next of kin, or under any statute of distributions; but the property is already vested in him, insomuch, that should he die before recovering them, they would be assets of his estate, to be recovered by his representatives, and not by the representatives of his wife" (p. 377).

If, then, the second section of the act of 1848 is so comprehensive that it would, if valid, take away from the husband his right of enjoying the wife's choses in action and personal property, in the event of her death, then, manifestly, the first section, being valid, does operate to that extent. This would prevent the husband from ever enjoying the deceased wife's personal property, as well after as before her decease, and such unquestionably would be the effect of that statute standing by itself.

But the provisions of the Revised Statutes protecting the husband's right to such personalty were left unrepealed in 1848-9, and they alone saved his interest. Now these are also repealed by the law of 1867, and the husband comes in under the present law merely to share in the wife's personal estate after her death, as the widow shares in the personal estate of her deceased husband.

In the matter of Frances M. Winne.

I concur in the opinion expressed in Hurd v. Cass, that the acts of 1848-9, did not affect the laws of descent that governed the wife's real estate; but I dispute the proposition that the husband's curtesy was ever taken by descent. By the statute of descents as well before as after 1848, all the wife's interest descended to her heirs. Prior to 1848 that interest was liable to be abridged or diminished in her realty by the birth of issue, which had precisely the same effect as though she had granted to another person a lease for the term of the lessee's life; so that, dying, she had so much less of interest to descend to her heirs. Now she retains her whole interest till her death, notwithstanding her marriage and the birth of children. She now leaves a larger interest, but such interest as she has, more or less, in real property, goes to her heirs-atlaw as it did before.

I must therefore, hold in this matter that the infant pettioner, Frances M. Winne, is sole owner of all the real estate proposed to be sold, and that her father has no interest in it. The proceeds of the sale must be paid or secured for the petitioner's benefit and an order entered accordingly.