Chew v. Com'rs of Southwark

• Decision Date: 14 February 1835
• Citation: 5 Rawle 160
• Parties: Chew v. the Commissioners of Southwark.
• Court: Pennsylvania Supreme Court

5 Rawle 160

Chew v. the Commissioners of Southwark.

Supreme Court of Pennsylvania.

February 14, 1835

IN ERROR.

There can be no tenancy by the curtesy of a remainder or reversion vested in the wife, if the particular estate continue till the death of the wife. This doctrine applies as well to equitable as to legal estates; and therefore,

A mere naked seisin of the freehold by the wife, as trustee, will not support tenancy by the curtesy; though she has the beneficial interest in the reversion.

ERROR to the District Court of the city and county of Philadelphia.

The plaintiff claimed in this action as tenant by the curtesy, to recover certain rent charges.

The case was this:

On the 30th January, 1793, John Lawrence and wife, conveyed certain lots of ground to Ann Penn Allen, in trust for herself and her sisters Margaret and Mary Allen. Ann Penn Allen, conveyed on the 1st February, 1793, to Asa Copeland on ground rent under whom the defendants claimed. The rent was reserved in common to herself and her two sisters Margaret and Mary. In 1793, Margaret intermarried with William Tilghman, and died in 1798, leaving one child Elizabeth Margaret Tilghman, and the said William Tilghman, her surviving.

1802 March 7, William Tilghman, executed a conveyance of the ground rents to Elizabeth Margaret Tilghman.

" To have and to hold the same to the said Elizabeth M Tilghman, her heirs and assigns, to her and their own use and behoof. In trust nevertheless, that the said Elizabeth, and her heirs and assigns shall permit and suffer the said William Tilghman, and his assigns, during the term of his life to enjoy, collect, and receive, for his and their own use, the hereby conveyed one undivided third part of all the rents aforesaid, until a partition of the said rents shall be made between the said Elizabeth M. Tilghman, and the other persons who held the said rents, undivided and in common with her; and after partition shall be made thereof as aforesaid then in trust, that the said Elizabeth M. Tilghman, her heirs and assigns, shall permit and suffer the said William Tilghman, and his assigns, during the term of his life, to enjoy, collect, and receive, for his and their own use, that part of the said rents, which shall be assigned to the said Elizabeth M. Tilghman, in severalty for her proportion of the rents aforesaid, upon the partition aforesaid."

1803, May 23. A partition was executed and the ground rent in question was allotted in severalty to Elizabeth Margaret Tilghman, who intermarried with Benjamin Chew, Jr., the present plaintiff, on the 11th July, 1816.

1817, June 17. Elizabeth Margaret Chew, died, leaving one child William Tilghman Chew, and her husband the said Benjamin Chew, Jr., her surviving.

1820, April 6. William Tilghman Chew, died.

1827, April 29. William Tilghman, died.

It was argued by Chew and J. R. Ingersoll, for the plaintiff in error, and by Coxe and Chauncey, for the defendants in error.

OPINION

KENNEDY J.

The rent in question being of the nature of a rent charge, the plaintiff claims a right to receive it as tenant by the curtesy. That a husband under a concurrence of certain circumstances, may become tenant by the curtesy of such estate, cannot be questioned. Co. Lit. 29, a. These circumstances according to Littleton, sec. 35, and Lord Coke, Co. Lit. 30, a, are marriage, seisin of the wife, issue and death of the wife. There seems to be no difficulty presented in this case, in regard to any of these things, except that of the seisin of the wife, or the husband in her right, during the coverture.

It is not necessary, however, I apprehend, to entitle a husband to claim by the curtesy in this state, that there should have been, what is considered in England an actual seisin of the wife or the husband during the coverture. It is sufficient if she were invested with the title to an estate of inheritance and had seisin of the freehold thereof in law, by having a right to demand and receive the rent accruing from the enjoyment of it, either by a tenant at will, or for a term of years, if out on lease; or otherwise to demand and recover the immediate possession thereof: or as the late Mr. Justice Duncan expresses it in Stoolfoos v. Jenkins, 8 Serg. & Rawle, 175, " if there was a potential seisin or right of seisin." This doubtless would be sufficient, according to the rule, which has obtained under our intestate law, regulating the descent of real estate in Pennsylvania, to enable the surviving issue of the wife after the death of the same, to claim and have the estate as her heirs. Seisin in fact on the part of a parent during his life is not requisite, to entitle the issue of such parent after his death to claim the real estate to which the parent had a title in fee, as his heirs. Ownership without seisin, not only regulates the descent of real estate here, but likewise gives the right to dispose of the same, either by deed or will. This also seems to be the law of Connecticut, according to the cases of Bush v. Bradley, 4 Day, 298, and Kline v. Beebe, 6 Conn. 494, 499. But even in England, where the estate consists of a rent as in the present case, an actual seisin, that is, a receipt of the rent by the wife or the husband, during the coverture, is not necessary to give the husband a right by the curtesy. If a present right existed to receive the rent, when and as soon as it should became payable, that as I conceive, would be sufficient. Co. Lit. 29, a; Perkins, sec. 469; Doctr. and Stud. 145; De Gray v. Richardson, 3 Atk. 471. The reason assigned for this in Co. Litt. 15, b, is " because there was no laches or default in the husband, nor possibility to get seisin: the law in respect to the issue begotten by him, will give him an estate by the curtesy of England; " or as it is said in Shelley's Case, 1 Co. 97, " if the wife dies before the rent day, the husband shall be tenant by the curtesy, as it is agreed in 7 E. 3, 66, a, b, and 3 Hen. 7, 5, a, for by the act of God, it is impossible for him to have actual possession. But see Doctr. and Stud. 145; where it is said, " the old custom and maxim of the law is, that he shall be so:" and this perhaps is the better reason, as the right by curtesy is the mere creature of the law, and has no moral foundation for its existence. Banks v. Sutton, 2 P. Wms. 703. But still there must be a seisin of the freehold as well as a right to the inheritance on the part of the wife during the coverture; or what shall be deemed equivalent thereto, having regard to the nature of the estate. And hence a husband cannot be tenant by the curtesy of a reversion or remainder, expectant upon an estate for life, unless the latter be determined during the coverture. Co. Litt. 29, a; Perkins, 467. It is alleged, however, that in the case before us, there was a seisin of the freehold, attended by a right to the inheritance on the part of the wife during the coverture. But of what was she seized? and again, what kind of a seisin was it? At most, she had only a bare naked seisin in law of the freehold, without any beneficiary interest whatever; and though connected with a right to the reversion or remainder in fee, even of an incorporeal estate, it is not sufficient, as it appears to me, to give the husband a right to it by the curtesy. For instance, if the wife was a mere trustee in fee, holding for the use of another and his heirs, it cannot be pretended that the husband of the wife on her death in such case, could claim to be tenant of the estate by the curtesy. Gilb. on Uses and Trusts, 18, in note, by Sugden: because, even at the common law in early times, it would seem to be, that the cestui que trust, was considered as the owner of the land, and was sworn in assizes, and other inquests in pleas real and personal; and the feoffee to uses, was to make such conveyance or estate, as cestui que use directed, or he would have been guilty of a breach of trust. Litt. sec. 464; Hoole v. Sales, 2...