Appeal of Robinson

• Decision Date: 14 May 1895
• Citation: 33 A. 652,88 Me. 17
• Parties: Appeal of ROBINSON.
• Court: Maine Supreme Court

33 A. 652

88 Me. 17

Appeal of ROBINSON.

Supreme Judicial Court of Maine.

May 14, 1895.

(Official.)

Appeal from probate court, Androscoggin county.

Olive O. Robinson appeals from a decree distributing the estate of Charles P. McKenny. Exceptions overruled.

N. & J. A. Morrill, for appellant.

WHITEHOUSE, J. This is an appeal from the decree of a probate court.

The executor of the will of Charles P. McKenny filed a petition under the provisions of Rev. St. c. 65, § 27, as amended by chapter 49 of the Laws of 1891, asking for an order of distribution which would protect him in paying out the residue of the estate in his hands. This involved a construction of the following residuary clause in the will:

"The residue and remainder of all my estate of which I may die seised and possessed, both real and personal, not herein otherwise disposed of, I give, bequeath, and devise the same to my son-in-law, Judyer Robinson, and my daughter, Olive H. Robinson, wife of the said Judyer Robinson, in equal shares and proportions, and so to their respective heirs and assigns forever."

Judyer Robinson died before the death of the testator, leaving a minor son and a wife, who is the appellant, and the same person called Olive H. Robinson in the will.

The decree of the judge of probate required one-half of the residuary estate to be paid to the appellant, and the other half to be distributed among the heirs of the testator, and this decree was amrmed by the justice presiding in the supreme court of probate. The case comes to this court on exceptions to that ruling.

It is the opinion of the court that the ruling was correct, and that the exceptions must be overruled.

It is contended by the learned counsel for the appellant that the residuary clause created a tenancy by the entirety, and that Olive O. Robinson is entitled to the entire residuary estate by right of survivorship. It is not controverted that the language employed by the testator must be construed as creating a tenancy in common, if Judyer Robinson and Olive O. Robinson had not been husband and wife. Stetson v. Eastman, 84 Me. 366, 24 Atl. 868. But it is argued that the rule of the common law by which a devise or grant to husband and wife constituted them tenants by the entirety, the survivor taking the whole, has never been changed in this state by the abolition of joint tenancies or the legislation enlarging the rights of married women respecting the ownership of property. It is accordingly contended that if the words, "In equal shares and proportions," found in the residuary clause, were advisedly employed for the purpose of making certain the intention of the testator to create a tenancy in common, this intention, however clearly expressed, cannot be allowed to prevail against the early rule of the common law that husband and wife, being regarded as one person in law, are not competent to take, either as joint tenants or as tenants in common, under any form of grant or devise in fee made to them during coverture.

We are unable to concur in this view. The rule of the common law undoubtedly existed as claimed by the appellant. It is thus stated in 2 Bl. Comm. 181: "If an estate in fee be given to a man and his wife, they are neither properly joint tenants nor tenants in common; for, husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my. The consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." And it is true that prior to the act of 1844, c. 117, and subsequent legislation in this state securing to the wife the enjoyment of her separate estate, this common-law rule was recognized by our court. Greenlaw v. Greenlaw, 13 Me. 186; Harding v. Springer, 14 Me. 407. But it is worthy of remark that no recognition of it or reference to it can be found in the cases reported in this state since the act of 1844, entitled "An act to secure to married women their rights in property."

A tenancy by entirety is sui generis. The right of survivorship gives it an apparent resemblance to joint tenancy, but, as already seen, it differs from a joint tenancy in important particulars. All the authorities agree that it had its origin in the marital relation, and was founded upon the legal fiction of the absolute oneness of husband and wife. At the common law the legal existence of the wife was merged in that of her husband. Her legal identity was suspended, or held in abeyance, during the existence of the marriage relation. Substantially all her property was vested in the husband during coverture, and her legal position was little better than that of a menial to her husband. Being but one person, in the eye of the law, it was considered that they could not consistently have separate and conflicting property rights. Hence the rule that property conveyed to them during coverture should be held as an estate by entirety, with the right of survivorship.

But the universal tendency of modern legislation has been to abrogate this theoretical unity of husband and wife; to recognize and maintain the legal identity of the wife, and secure to her a distinct and separate right to the acquisition and enjoyment of property. By the law of this state, "a married woman of any age may own in her own...