Laird v. Perry

• Decision Date: 21 August 1902
• Citation: 74 Vt. 454,52 A. 1040
• Court: Vermont Supreme Court
• Parties: LAIRD v. PERRY et al.

52 A. 1040

74 Vt. 454

LAIRD

v. PERRY et al.

Supreme Court of Vermont. Washington.

Aug. 21, 1902.

Appeal in chancery, Washington county.

Bill by W. E. Laird, assignee in insolvency of the Perry Manufacturing Company, against Fred H. Perry and others. From a pro forma decree on a master's report dismissing the bill, the orator appeals. Reversed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

John H. Senter and Dillingham, Huse & Howland, for appellant.

H. C. Shurtleff and G. W. Wing, for appellees.

WATSON, J. Before and at the time of the filing of the petition in insolvency the real estate in question was held by the defendants Fred H. Perry and Edna A. Perry, his wife, as tenants by entirety. It included their homestead. No claim is made that the property was thus held in fraud of creditors, but It is contended that, exclusive of the right of homestead and the right of survivorship in Edna A., the property passed to the assignee under the assignment to him of the estate of the debtor, Fred H., in the insolvency proceedings. The assignment conveyed to the assignee all the estate, real and personal, of said debtor, except such as was by law exempt from attachment; and it vested in the assignee all the property of said debtor, real and personal, which he could have lawfully sold, assigned, or conveyed, or which might have been taken on execution upon a judgment against him at the time of the filing of the petition. V. S. 2096, 2098. By R. L. 2324, the rents, issues, and products of the real estate of a married woman, and moneys and obligations arising from the sale of such real estate, and the interest of her husband in her right in real estate which belonged to her before marriage, or which she acquired by gift, grant, devise, or inheritance during coverture, were, during coverture, exempt from attachment or levy of execution for the sole debts of the husband, except that the annual products could be attached or levied upon for certain debts therein specified. In Corinth v. Emery, 63 Vt. 505, 22 Atl. 618, 25 Am. St. Rep. 780, decided in 1891, upon which defendants rely, estates by entireties were held to be within the scope of the provisions of this section, and that the estate of the wife, and her husband's interest therein, in her right, were protected from the husband's sole creditors. By R. L. 2325, no conveyance made during coverture by the husband of such rents, issues, and products, or of an interest in such real estate, as are mentioned in section 2324, was valid unless the same was by deed executed by the wife jointly with him. Peck v. Walton, 26 Vt. 82. By the revision of the statutes in 1894 the law in this regard was repealed, unless it can be said that some of the provisions of those sections were retained in V. S. 2646, 2647. The former section has no application to the case at bar. It provides only that a married woman shall not become surety for her husband's debts except by way of mortgage, nor convey or mortgage her real estate except by deed duly executed by herself and husband. The latter section provides that all personal property and rights of action acquired by a woman before coverture or during coverture, except by gift from her husband, shall be held to her sole and separate use; and neither a wife's separate property nor the rents, issues, income, and products of the same shall be subject to the disposal of her husband, or liable for his debts. These provisions relate solely to the wife's separate property and the rents, issues, income, and products of such property. In re Nelson's Will, 70 Vt. 130, 39 Atl. 750. That case was an appeal by the testator's daughter and her husband from a decree of the probate court establishing the will. It was heard on motion to dismiss the appeal as to the husband on the ground that he improperly joined therein. The testator was the owner of real estate at the time of his death. It was contended in support of the motion that by V. S. 2647, the wife was vested with the right to hold all her real estate to her sole and separate use; while against it the contention was that this section related solely to personal property. It was held that any real estate which the wife might take as heir of the testator would not be her separate property, and that her husband would be entitled to the rents and profits of it during coverture; hence that he properly joined in the appeal. To reach this decision it must also have been held that the rents and profits of such real estate were not within the provisions of that section of the statute. The same section was recently under consideration in the United States district court, Wheeler, J., in Re Rooney, 109 Fed. 601,—a case in some respects very analogous to the one at bar. The question there was whether the products of the wife's land, conveyed to her without limitation as to use passed to the trustee in bankruptcy of her husband as a part of his estate. It was held that the land was not her separate property, and that the products thereof were a part of the husband's estate, which passed to the trustee. Nor is the case of Niles v. Hall, 64 Vt 453, 25 Atl. 479, an authority to the contrary; for the only question therein raised or determined is the constitutional one of the power of the legislature to relieve the products of the wife's real estate from liability for the husband's debts previously contracted. The wife's real estate, not her separate property, and the rents, issues, income, and products of the same, stand as at common law, and by it the husband's right of disposal must be determined. The rights of his creditors therein rest upon the common law, together with the provisions of section 1814, V. S., to which reference is again made farther on.

An estate by entirety is held by the husband and wife as one person, and under one title. The grant, gift, or devise creating the estate operates in such a manner as to give each the whole, and each is seised of the whole with a continuance of the estate in the survivor. Corinth v. Emery, supra. It is not her separate property, for she is without the essential characterizing feature of holding it to her sole use to the exclusion of the marital rights of her husband. Frary v. Booth, 37 Vt. 78; Hackett v. Moxley. 68 Vt. 210, 34 Atl. 949; Curtis v. Simpson, 72 Vt. 232, 47 Atl. 829. In Hackett v. Moxley the real estate in question was held by the wife in fee at the time of her marriage, but not as her separate property. It was held that at common law, by her marriage, the husband took a freehold estate therein, and was entitled to the rents and profits during coverture. See, also, In re Nelson's Will above cited. That the husband ma: convey such an estate by his sole deed, when there is no statute to prevent, is beyond question Knapper v. Wooster, Brayton, 50; Bruce v Thompson, 26 Vt. 741. And the same standi charged with his debts and...