Buttlar v. Rosenblath

• Decision Date: 31 March 1887
• Citation: 9 A. 695,42 N.J.E. 651
• Parties: BUTTLAR and others v. ROSENBLATH and others.
• Court: New Jersey Supreme Court

9 A. 695

42 N.J.E. 651

BUTTLAR and others

v. ROSENBLATH and others.

Court of Errors and Appeals of New Jersey.

March Term, 1887.

(Syllabus by the Court.)

On appeal from court of chancery.

Abel I. Smith and Fred. Stevens, for appellants.

Hoffman & Herbert, for respondent.

VAN SYCKEL, J. The bill in this case was filed by Elizabeth Rosenblath, a judgment creditor of Christian Buttlar, to set aside certain conveyances of real estate alleged to be fraudulent as against her. The lands in question were conveyed October 12, 1881, by one Catharine Quidort to said Christian Buttlar and Minna, his wife. The decree of the court of chancery declares the conveyance by the judgment debtor void as against the judgment of the complainant, and also adjudges that, by virtue of the conveyances aforesaid to said Christian and Minna, the said Christian Buttlar was seized, as against said complainant, as tenant in common with his said wife of the lands so conveyed. 1 concur in the view taken by the court below that the conveyances set aside were fraudulent as to said judgment creditor. The only question, therefore, to be discussed is as to the effect of the married woman's act upon an estate granted or conveyed to husband and wife.

In a recent casein England the construction of the married woman's property act of 1882 was directly involved. Mander v. Harris, 24 Ch. Div. 222. The act provides that "a married woman shall, in accordance with the provisions of said act, be capable of acquiring, holding, and disposing, by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee." Mr. Justice Chitty delivered the opinion of the court that the old rule of law that husband and wife were for most purposes one person, so that, under a gift by will to a husband and wife and a third person, the husband and wife took only one moiety between them, the third person taking the other moiety, is no longer applicable to such a gift under a will that has come into operation since the passage of the act of 1882. This case was reversed on appeal, on the ground that the will was executed before the passage of the act of 1882, and the court declined to express any opinion as to the effect of such words in a will made after the said act came into operation. Mander v. Harris, 27 Ch. Div. 166.

In New York the acts respecting married women do not differ substantially from our own, so far as the question now considered is concerned.

This question was elaborately and ably discussed in a recent case in the New York court of appeals. The conclusion there reached is that the common-law doctrine has not been abrogated by the statutory provisions, and that, under a conveyance to a husband and wife jointly, they take, not as tenants in common, or as joint tenants, but as tenants by the entirety, and, upon the death of either, the survivor takes the whole estate. Bertles v. Nunan, 92 N. Y. 152.

Our legislation, which preserves to married women their separate rights of property, has no effect upon the capacity of the wife to take property. She has no greater right to receive conveyances than she had at common law, but legislation has secured to her, what she did not have at common law, the use, benefit, and control of her own real estate. The statute does not purport to define or limit the estate husband and wife shall take in lands conveyed to them jointly. It does not change or modify in anywise the signification or effect of terms used in common-law conveyances. It simply enables the wife to have and enjoy whatever estate she gets by any conveyance made to her, or to her and others jointly, and does not enlarge or diminish that estate.

It operates upon the enjoyment, and not upon the character, quantum, or extent of it.

It is argued that the reason upon which the common-law rule rests has ceased to exist, and hence that the rule should no longer be adhered to. This contention is not well founded. This legislation has not destroyed the unity of husband and wife recognized in the common law, and made them substantially separate persons in respect to property rights. In this state the wife cannot convey her land unless the husband joins in the execution of the deed. The husband cannot convey directly to the wife, nor the wife to the husband. The common-law incidents of the marriage relation are not all swept away. The rule is everywhere recognized that they are extinguished only where the intention to remove them clearly appears. The ability of the wife to make contracts is limited, and she can bind herself only where she is expressly authorized by statute to do so. Nor is her estate so absolutely freed from the effect of the marriage relation as to deprive the husband wholly of his common-law right of tenancy by the curtesy. Although the cases are conflicting, there is abundant authority to support the view of the New York courts that the husband and wife are seized of the entirety, per tout et non per my, and upon the death of either the whole survives to the other. Diver v. Diver, 56 Pa. St. 106; Fisher v. Provin, 25 Mich. 350; Bates v. Seely, 46 Pa. St. 248; Marburg v. Cole, 49 Md. 402; McDuff v. Beauchamp, 50 Miss. 531; Chandler v. Cheney, 37 Ind. 391.

Our own cases are in line with these decisions. In Thomas v. De Baum, 14 N. J. Eq. 37, Chancellor Green decided that the act of our legislature converting...