Godman v. Greer

• Decision Date: 30 November 1918
• Citation: 12 Del.Ch. 397,105 A. 380
• Court: Court of Chancery of Delaware
• Parties: ELIZABETH R. GODMAN, v. JAMES W. GREER, and others. In the Matter of Partition of Real Estate of Jemima Walker, deceased

105 A. 380

12 Del.Ch. 397

ELIZABETH R. GODMAN, v. JAMES W. GREER, and others. In the Matter of Partition of Real Estate of Jemima Walker, deceased

Court of Chancery of Delaware, New Castle

November 30, 1918

PETITION FOR PARTITION. In a cause in partition there was filed a petition by one not made a party to the cause claiming to have an interest and asking leave to intervene and be a party thereto, based on his interest. The facts are these:

William McCartney by a codicil to his will dated in 1894, probated in 1902, devised land to "Jemima Walker and to her husband Alexander Walker, and to their heirs and assigns, as tenants in common, to have share and share alike." Alexander Walker died in 1903 intestate, and his wife, Jemima Walker died in 1914 also intestate. There were no children of the marriage. Alexander Walker left children and grandchildren by a former marriage, and they are his heirs at law. Jemima Walker never had children, and her heirs at law are issue of her two deceased sisters.

One of the heirs of Jemima Walker filed a petition for partition based on the theory of survivorship of the whole estate in her. Subsequently one of the children of Alexander Walker by a former marriage filed a petition to intervene, claiming for himself and his brothers, sisters, nephews and nieces that his father was seized of an undivided one-half of the property under the devise by William McCartney.

Upon the facts set forth in the original petition for partition and the petition for intervention counsel for the parties were heard.

Petition dismissed.

Leonard E. Wales, for the heirs at law of Jemima Walker.

William H. Heald, for the heirs at law of Alexander Walker.

CURTIS P. J., and RICE, J., sitting.

OPINION

CURTIS, P. J. There is raised by the petition for partition filed by an heir at law of Jemima Walker, and the petition for intervention by an heir at law of Alexander Walker, a question never before litigated in this State, viz. whether by a devise of land to a man and his wife (and so designated) expressly as tenants in common, the devisees took an estate by the entireties or as tenants in common.

Clearly the words of the will would create a tenancy in common if the devisees had not been husband and wife. It is equally clear that a grant or devise of land to a man and his wife during coverture without any expressed intention to create any other estate would vest in them an estate by the entireties. This was the ancient common-law rule, and it is still the rule in Delaware, notwithstanding the statutes abolishing joint estates, unless expressly so granted or devised, and notwithstanding the remedial legislation in favor of married women. In 1899 Chancellor Nicholson in Kunz v. Kurtz, 8 Del.Ch. 404, 68 A. 450, so decided, where, so far as appears, there was a conveyance by deed to a man and woman correctly described as husband and wife, without words of severance of their estates. The Chancellor followed other courts which excluded an estate by the entireties from the operation of statutes against joint estates similar to our own, for the reason that an estate by entireties is not a joint estate, but a sole tenancy, both husband and wife having the whole estate, i. e., per tout, and not per my et per tout.

In holding that the Married Women's Act (Rev. Code 1915, §§ 3033-3060) did not in effect abolish estates by entireties, the Chancellor adopted by quotation words of Judge Strong in an early case in Pennsylvania, Diver v. Diver, 56 Pa. 106, 109, stating the purpose of such remedial legislation to be not to destroy the oneness of husband and wife, but to protect the wife's property by removing it from under the dominion of the husband. The Chancellor also repudiated the reasons given in cases cited to support the contrary views. These cited cases point out that the rule as to entireties is based on the ancient theory that the husband and wife could not have separate and conflicting property rights, and that her existence so far as property was concerned was merged in his. And it is quite true that that peculiar and anomalous estate had its origin in that legal identity of personality so far as property rights were concerned. At common law the legal existence of the wife was merged in that of her husband. Her legal identity was suspended and held in abeyance during the existence of the marriage relation, and she was little better than a menial to her husband. It is always declared that they could not hold property otherwise than by entireties, because they were one in law, and that one was the husband during coverture, her property rights being his and she being under his dominion. But the courts with which the Chancellor did not agree said in their opinions that inasmuch as a wife had been given rights and powers to acquire, hold, use, enjoy and dispose of property clear of the control of her husband, she had as to property rights acquired a separate entity in the law, and that she and her husband were two separate and independent persons. In Clark v. Clark, 56 N.H. 105, the Court said:

"The existence of a married woman, so far as her property is concerned, is no longer by our law merged in that of her husband, but she has become a separate being endowed, so far as her separate estate is concerned, with the power and subjected to the liabilities of an unmarried woman."

They and many other courts both in cases not cited to the Chancellor, and those which have since been decided, were irresistibly driven to the conclusion that as the reason for the rule, always recognized as based on a legal fiction and as a product of legal subtlety, had ceased the rule itself had no foundation on which to stand.

This view is found in Robinson, Appellant, 88 Me. 17, 22, 33 A. 652, 30 L. R. A. 331, 51 Am. St. Rep. 367, where the Court showed by its reasoning, as Chancellor Nicholson admitted, some familiarity with the common law of real property. Still in the Delaware case the Chancellor found that the overwhelming weight of American authority, "amounting almost to unanimity" was opposed to giving full effect to the emancipating statutes. It should be noted, however, that of the cases mentioned in the opinion as sustaining it none were cases of a devise or conveyance to a husband and wife expressly as tenants in common. In the Massachusetts case the Married Women's Act was not considered. In Pennsylvania and New York, and perhaps elsewhere, the later cases validate a devise to a husband and wife as tenants in common, and in the case cited from Arkansas the Court said the common-law rule would not be extended to a devise to a man and his wife expressly as joint tenants.

Perhaps the Chancellor was right upon the authorities as they then were. But however overwhelming the mass of decision (if there be such) a good reason is of more weight than a multiplicity of adjudications. We cannot accept his conclusions as to the effect of the Married Women's Acts upon the questions. Stare decisis is a principle of great importance; but it does not require the extension to new facts of a rule of law which though ancient is now without the reasons which gave it vitality. We are unwilling to be bound by that case in deciding this new question though quite frankly we do not see that there is any difference in principle between the two. The ancient rule is not based on intention, but upon a legal fiction. It should operate upon a devise as well as a grant. Likewise it should operate independent of a testamentary intention to the contrary, such as is clearly expressed in the present case, and if applied here will defeat such clear intent as ruthlessly as do some other fixed principles. So far as concerns a separate grant of land to a man and woman during coverture, that case may still stand as authority that they take by entireties, according to the common law, though it does not meet our approval. But where clear words are used in a will proper to create in persons other than a man and his wife an estate in common, we shall hold it to be such when the devise is to husband and wife during coverture.

In brief, the rights which a married woman has during coverture as tenant in common with her husband of land would be these: By will she may dispose of her undivided estate without the consent of her husband, but subject to his rights if he survive her. Rev. Code, § 3050, p. 1426. She may prosecute and defend suits for the presentation and protection of her own property, and make contracts concerning it as if unmarried. Rev. Code, § 3052, p. 1427. But she could not at law maintain an action against her husband, or be sued by him. Masten v. Herring, 22 Del. 282, 6 Penne. 282, 66 A. 368 (1907), affirmed by the Supreme Court as shown by a note to the case as reported. In the Court of Chancery the rights of a husband and wife against each other may under some circumstances be enforced. Fox v. Johnson, 4 Del.Ch. 580; Rambo v. Rumer, 4 Del.Ch. 9, and note thereto on page 19; Hood v. Jones, 5 Del.Ch. 77; Spruance v. Equitable Trust Co., ante p. 12, 12 Del.Ch. 12, 103 A. 577. If she and her husband were the only tenants in common of the land, then probably she could not maintain a partition cause in the Orphans' Court under the statutory proceeding, but probably could maintain a suit in equity for partition, for partition was anciently and still is part of the original jurisdiction of Courts of Chancery where they are not deprived thereof by statute giving exclusive jurisdiction to other courts. Bradford v. Robinson, 12 Del. 29, 7 Houst. 29, 30 A. 670.

A deed concerning her land executed by her alone would be valid and effectual as if she were sole. Rev. Code, § 3200, p 1483. But a deed from her to her husband would be void. In re Williams...