Hutchings v. Commercial Bank 1

• Decision Date: 31 January 1895
• Citation: 20 S.E. 950,91 Va. 68
• Parties: HUTCHINGS . v. COMMERCIAL BANK et al.1
• Court: Virginia Supreme Court

20 S.E. 950

91 Va. 68

HUTCHINGS .

v.COMMERCIAL BANK et al.¹

Supreme Court of Appeals of Virginia.

Jan. 31, 1895.

Construction of Statute — Married Woman's Act—Curtesy"—Death of Tenant— Liability of Estate.

1. Acts 1877-78, p. 248, § 2 (Married Woman's Act), after providing for the separate estate of married women, curtesy, and dower, provided, further, that the sole and separate estate created by any gift, grant, devise, or bequest should be held according to the terms thereof, "and to the provisions and limitations of this act, so far as they are [not] in conflict therewith." Held, that the word "not, " as inserted in brackets, was omitted by inadvertence, and its insertion was necessary in order to effect the manifest legislative intent.

2. Under said act, as construed above, where property is conveyed to a trustee "for her separate use and benefit, to have, use, and enjoy the same, unto her and her assigns, free from debts and liabilities of her husband, " there is created an equitable separate estate, which must be governed by the provisions of the instrument originating the same, and the wife may devise the same to others than her husband.

3. Where a married woman becomes lessee of property for a term of years, her estate is liable for rent during the whole term, although she died soon after making the lease, and the property is occupied by others, against whom the right of distress for rent is never exercised by the landlord.

On rehearing. Modified.

For former opinion, see 17 S. E. 477.

HARRISON, J. In April, 1S90, the Commercial Bank of Danville, Va., filed its bill in the circuit court of Danville against John R. Hutchings, P. H. Boisseau, administrator c. t. a. of Sue R. Hutchings, deceased, Lucy Allen Hutchings and Sue Hutchings, infant children of Sue R. Hutchings, deceased, and J. D. Blair, seeking to subject the interest of said John R. Hutchings, as tenant by the curtesy, in the separate real estate of his wife, Sue R. Hutchings, to the payment of a certain debt due said bank from said John R. Hutchings; and, further, to settle certain accounts between the estate of Sue R. Hutchings and John R. Hutchings, and to subject the separate estate of Sue R. Hutchings to a debt due by her, as indorser for said John R. Hutchings, and to have an account of the money advanced by John R. Hutchings to his wife in erecting a dwelling house upon her lot, and to have anything thus shown to be due said John R. Hutchings applied to the payment of the debt due plaintiff. Answers were filed, and the cause referred to a commissioner, who made a full report of all the fates and the evidence, and then it came on to be heard by the court upon exceptions taken to said report by both sides. The court, by a decree dated June 11, 1891, partially disposed of the principles of the cause, and re-committed the same for further inquiries; and under this order a second report was made, to which exceptions were taken, and on the 24th day of March, 1S92, the court entered a second decree, fully settling the principles of the cause and the rights of the parties. It is from these two decrees that an appeal was allowed to this court. On the 6th day of April, 1893, this court delivered its opinion affirming the decrees appealed from, and on the 21st of June, 1893, a rehearing was granted; and we are now called upon to decide the case upon said rehearing.

It appears from the record that Mrs. Sue R. Hutchings, late of Danville, left a will, which was duly probated in said city on the 14th day of January, 1889, in which she gives to her two children all her real and personal estate. The real estate passing under this will consisted of the following separate estate of Sue R. Hutchings: First, a house and lot on West Main street, in Danville, which was conveyed as a gift, by her father, Thomas B. Doe, by deed dated January 10, 1881, to a trustee for the separate use and benefit of the said Sue R. Hutchings, for her to have, use, and enjoy the same, or her assigns, forever, free from debts and liabilities of her husband. Second, a lot on Broad street in said city, bought by Mrs. Hutchings at the sale for partition of her father's lands, and paid for with her interest in the estate of her father, and conveyed, by deed dated April 16, 1884, by the sale commissioner (Mrs. Hutchings and her husband, John R. Hutchings, uniting in the deed), to a trustee for said Sue R. Hutchings, in trust for the sole and separate use of the said Sue R. Hutchings, the wife of said John R. Hutchings, to sell, convey in trust, or devise the said real estate as the said Sue R. Hutchings may desire. Third, an undivided one-third interest in a lot on Broad street in said city, bought by said Sue R. Hutchings at the sale for partition of her father's lands, and paid for with her interest in the estate of her father, which was conveyed by mistake, by the sale commissioner, to John R. Hutchings, and subsequently, by deed dated June 21, 1888, in which said mistake was recited, conveyed by said John R. Hutchings and Sue Hutchings to a trustee for the sole and separate use of said Sue R. Hutchings, and for her to sell, convey, and otherwise dispose of as she pleases. Fourth, an undivided one-seventh interest in certain unsold lands lying just outside the said city, and belonging to the estate of Thomas B. Doe, the father of Mrs. Hutchings, to which one-seventh interest she is entitled as one of the heirs of said estate. It is insisted by the appellees that these lands, being acquired since the act known as the "Married Woman's Law" (see Acts 1877-78, p. 247), and before the adoption of the Code of 1887, are held by Mrs. Hutchings subject to the provisions of said act; and whether or not her husband has curtesy in them is to be determined solely by that act, without reference to the law as it was prior thereto. The appellees further insist that said act is to be so construed that when there is a conflict between it and the deed or deeds under which the separate estate is held the act must prevail. On the other hand, it is contended by appellants that the act did not mean to create a conflict between it and the separate estate as created by the deed; that it was only intended to protect married women in their property rights when they were not otherwise protected; that said statute did not destroy the equitable separate estates created by deed, devise, etc, but in terms recognized and excepted them from its operation.

The second section of the act in question (see Acts 1877-78, p. 248) provides as follows: "All real and personal estate hereafter acquired by any woman, whether by gift, grant, purchase, inheritance, devise or bequest, shall be and continue her sole and sep-arate estate subject to the provisions and limitations of the preceding section, although the marriage may have been solemnized previous to the passage of this act; and she may devise and bequeath the same as if she were unmarried; and it shall not be liable to the debts and liabilities of her husband: provided that nothing contained in this act shall be construed to deprive the husband of curtesy in the wife's real estate, nor the wife of dower in her husband's estate, and provided further, that the sole and separate estate created by any gift, grant, devise or bequest shall be held according to the terms and powers and be subject to the provisions and limitations thereof, and to the provisions and limitations of this act, so far as they are in conflict therewith, " etc. It would appear from the last words quoted from the act that equitable separate estates are made subject to the provisions of the act, and yet, just preceding these words, the act declares: "And provided further, that the sole and separate estate created by any gift, grant, devise or bequest shall be held according to the terms and powers, and to the provisions and limitations thereof." Here we are confronted with an irreconcilable conflict in the act itself, In this: that in the same sentence equitable separate estates are recognized, preserved, and upheld, and at the same time destroyed by being made subject to the provisions of the act. It is clear that the act intended to recognize and preserve equitable separate estates; otherwise, reference to them was useless. The latter part of the section just quoted makes equitable separate estates subject to the provisions of the act, "so far as they...