Licker v. Gluskin

• Decision Date: 05 January 1929
• Citation: 265 Mass. 403,164 N.E. 613
• Parties: LICKER et ux. v. GLUSKIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 403

164 N.E. 613

LICKER et ux.

v.GLUSKIN et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 5, 1929.

Appeal from Superior Court, Hampden County; Lummus, Judge.

Suit by Louis Licker and wife against Abraham Gluskin and others. Decree for defendants, and plaintiffs appeal. Reversed and rendered.A. A. Aronstam, of Springfield, for appellants.

W. P. Hayes, of Springfield, for appellees.

RUGG, C. J.

The plaintiffs as husband and wife are tenants by the entirety of a tract of land in Springfield. A creditor of the wife attached her interest in that land on a writ sued out in an action at law against her, recovered judgment, took out execution, and placed it in the hands of a deputy sheriff for service, who levied upon the interest of the wife in the land and was proceeding toward the sale of the same on the execution when this suit was brought. The question presented is whether the interest of a wife in real estate held by her husband and herself as tenants by the entirety can during their joint lives be attached and sold by a creditor of the wife. This precise question has never been presented for decision in this commonwealth, so far as we are aware.

‘The nature of a tenancy by the entirety is thoroughly established by our decisions. It is founded on the common-law doctrine of the unity of husband and wife as constituting in law but one person. A conveyance to a husband and wife as tenants by the entirety creates one indivisible estate in them both and in the survivor, which neither can destroy by any separate act. Both husband and wife are seized of such an estate per tout et non per my as one person, and not as joint tenants or tenants in common. Alienation by either the husband or the wife will not defeat the right of the survivor to the entire estate on the death of the other. There can be no severance of such estate by the act of either alone without the assent of the other, and no partition during their joint lives, and the survivor becomes seized as sole owner of the whole estate regardless of anything the other may have done. The tenancy by the entirety is essentially a joint tenancy modified by the common-law theory of the unity of husband and wife. They do not take by moieties, but by entireties. The characteristics of a tenancy by the entirety at common law continue unaffected by the modern statutes designed to ameliorate the rights of married women at common law and to render more flexible and individual the property rights of husband and wife. These principles are amplified and applied to diverse sets of facts in many of our decisions. Shaw v. Hearsey, 5 Mass. 521;Wales v. Coffin, 13 Allen, 213;Pierce v. Chace, 108 Mass. 254;Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824,55 Am. Rep. 462;Pease v. Whitman, 182 Mass. 363, 65 N. E. 795;Boland v. McKowen, 189 Mass. 563, 76 N. E. 206,109 Am. St. Rep. 663;McLaughlin v. Rice, 185 Mass. 212, 70 N. E. 52,102 Am. St. Rep. 339;Hoag v. Hoag, 213 Mass. 50, 99 N. E. 521, Ann. Cas. 1913E, 886;Palmer v. Treasurer & Receiver General, 222 Mass. 263, 110 N. E. 283, L. R. A. 1916C, 677;Voight v. Voight, 252 Mass. 582, 147 N. E. 887.’ Bernatavicius v. Bernatavicius, 259 Mass. 486, 487, 156 N. E. 685, 52 A. L. R. 886. The title of both the husband and wife as tenants by the entirety arises out of the instrument, whether deed, devise or gift, by virtue of which they become seized of the estate. The one who survives and thereby becomes the sole owner of the whole takes no new title by the survivorship. Palmer v. Treasurer & Receiver General, 222 Mass. 263, 265, 110 N. E. 283, L. R. A. 1916C, 677.

[4] The theory of grants or transfers of interests in property at common law gives an appearance of plausibility to the suggestion that the wife may transfer her interest in a tenancy by the entirety, subject to its main feature as to the rights of the husband if he survives. That theory rests upon the principles of the ancient law, surviving in full force in modern times, to the effect that, although a bare possibility, hope, or expectation as to title to real estate cannot be granted, a possibility coupled with a present interest may be the subject of a grant. This principle is so well settled as to real estate that commonly it is stated baldly without discussion, the difficulty lying, not in its recognition, but in its application. Winslow v. Goodwin, 7 Metc. 363, 379;Gardner v. Hooper, 3 Gray, 398, 403;Rice v. Boston & Worcester Railroad, 12 Allen, 141, 142;Clarke v. Fay, 205 Mass. 228, 233-237, 91 N. E. 328,27 L. R. A. (N. S.) 454, and cases reviewed. See Board of Education of Humphreys County v. Baker, 124 Tenn. 39, 47, 134 S. W. 863;Brown v. Gale, 5 N. H. 416. This principle has been applied frequently to sales, mortgages, and assignments of interests in personal property, and has been discussed and amplified in that connection. Low v. Pew, 108 Mass. 347, 11 Am. Rep. 357;Citizens' Loan Association v. Boston & Maine Railroad, 196 Mass. 528, 530, 531, 82 N. E. 696,14 L. R. A. (N. S.) 1025, 124 Am. St. Rep. 584,13 Ann. Cas. 365;Kerr v. Crane, 212 Mass. 224, 228, 229, 98 N. E. 783,40 L. R. A. (N. S.) 692;Federal Trust Co. v. Bristol County Street Railway, 222 Mass. 35, 45, 46, 109 N. E. 880;Taylor v. Barton Child Co., 228 Mass. 126, 129, 130, 117 N. E. 43, L. R. A. 1918A, 124.

Seemingly there is force in the contention that the interest of the wife in an estate held by her husband and herself as tenants by the entirety is in the nature at least of a potential title and constitutes a possibility of acquisition of complete possession coupled with the absolute title, and hence may be conveyed by her and attached by her creditors. But we are of the opinion that this principle is not applicable to the wife in an estate by the entirety. Without undertaking to define further the characteristics of an estate by the entirety, its nature is such that the principle just stated does not govern the power of the wife touching her interest therein.

It has been held after great deliberation that the ‘statutes enabling a married woman to receive, hold, manage, and dispose of real and personal property in the same manner as if she were sole, cannot * * * be construed to apply to the estate by entireties of husband and wife. * * *’ And after an analysis of the statutes it further was said: ‘We think it appears that the Legislature intended that this peculiar tenancy should be preserved as it existed at common law.’ Pray v. Stebbins, 141 Mass. 219, 222, 223, 4 N. E. 824, 826,55 Am. St. Rep. 462. That decision frequently has been cited with approval in the cases herein collected. It follows from this statement of the law that the common-law rights and disabilities of both husband and wife attach to the interest and title of each arising under a tenancy by the entirety. That principle is illustrated by Phelps v. Simons, 159 Mass. 415, 34...