McNeer v. McNeer

• Decision Date: 02 November 1892
• Citation: McNeer v. McNeer , 142 Ill. 388, 32 N.E. 681 (Ill. 1892)
• Parties: McNEER et al. v. McNEER et al.
• Court: Illinois Supreme Court

142 Ill. 388

32 N.E. 681

McNEER et al.

v.McNEER et al.¹

Supreme Court of Illinois.

Nov. 2, 1892.

Error from circuit court, Vermillion county; EDWARD P. VAIL, Judge.

Agreed case between Valentine McNeer, and Grace I. McNeer, May MeNeer, Edna McNeer, Pearl McNeer, and Ethel McNeer, by Valentine McNeer, their next friend, complainants, and Franklin O. McNeer, Mary J. Bedinger, Isaac N. Busby, and the trustees of schools of township 19 N., of ranges 10 and 11 W., defendants.Complainants obtained a decree.Defendants bring error.Reversed.

D. D. Evans, for plaintiffs in error.

E. R. E. Kimbrough, for defendants in error.

MAGRUDER, J.

This is an agreed case, made by the parties to a partition suit in chancery in the circuit court of Vermillion county, and filed in that court, and certified to this court, together with the decision of the circuit court thereon, by the clerk of said circuit court, under section 74 of the practice act.The circuit court granted the relief asked for by complainants in the original bill as finally amended, and sustained a demurrer to the cross bill filed by the defendants below, and dismissed said cross bill.The facts, as agreed to, are that Valentine McNeer, one of the defendants in error, is the surviving husband of Sarah A. McNeer, deceased; that in 1858 the said Sarah became seised in fee of the lands in controversy located in said county; that in 1868she intermarried with the said Valentine; that, in 1870, Franklin O. McNeer, one of the defendants below and one of the plaintiffs in error here, was born to the said Sarah and Valentine, the issue of their said marriage; that in 1878 the said Sarah died seised of said lands, and leaving her surviving the said Valentine, her husband, and the said Franklin O. and others, her children and heirs at law.It being agreed that there was seisin in fee in the wife in 1858, marriage in 1868, birth of issue capable of inheriting in 1870, and death of the wife in 1878, the question presented for decision is this: Is the surviving husband entitled to an estate by the curtesy in the real estate of which his wife died seised in fee, or is he limited to dower therein under and by virtue of the statute relative to dower in force since 1874?By the decree of the circuit court, an estate by the curtesy in said lands was declared in favor of Valentine McNeer, and it was ordered that he should have, during his life, the use, issues, rents, and profits of said lands, free from the interference of any of the heirs at law of his deceased wife, Sarah, etc.The errors assigned question the correctness of this decree.

Section 1 of the dower act, which went into force on July 1, 1874, provides ‘that the estate of curtesy is hereby abolished, and the surviving husband or wife shall be endowed of the third part of all the lands whereby the deceased husband or wife was seised of an estate of inheritance, unless the same shall have been relinquished in legal form.’Starr & C. Ann. St.p. 896.Mrs. McNeer was alive when this act went into force, her death not having occurred until four years thereafter.If, when the act became a law, Valentine McNeer had had an estate of tenancy by the curtesy initiate, the act would not have had the effect of depriving him of that estate, and reducing it to an estate of dower, as defined in said section above quoted.At common law, by virtue of the marriage alone, and without the birth of issue, the husband was seised of an estate, during coverture, in the lands held by his wife in fee.He is said to have been seised of the freehold jure uxoris.He took the rents and profits during the joint lives of himself and his wife.This estate was ended by the death of the wife or the death of the husband.It applied to land in which the wife was seised of an estate of inheritance either at the time of the marriage or after the marriage.‘It is a freehold estate in the husband, since it must continue during their joint lives, and it may by possibility last during his life.’It has sometimes been called a ‘tenancy by the marital right.’It was liable to be sold on execution against the husband.2 Kent, Comm. 130;1 Bish. Mar. Wom. 529, 531;Cole v. Van Riper, 44 Ill. 58;Bozarth v. Largent, 128 Ill. 95, 21 N. E. Rep. 218.‘This is a vested estate in him, and * * * it is not competent for legislation, without his consent, to take it from him and give it back to the wife.’2 Bish. Mar. Wom. § 40;Rose v. Sanderson, 38 Ill. 247;Kibbie v. Williams, 58 Ill. 30.

But the estate during coverture, or tenancy by the marital right, is quite different from tenancy by the curtesy, particularly in the fact that the former does not continue after the wife's death.As soon as issue was born, the estate of the husband was changed in its character.By the birth of issue he became tenant by the curtesy initiate, and as such was entitled to an estate in his wife's lands in his own right and for his own life.This estate became consummate upon the death of the wife.Four things are requisite to an estate by the curtesy,-lawful marriage, actual seizure of the wife, issue capable of inheriting, and death of the wife.The first three, without the last, constitute tenancy by the curtesy initiate.The husband's estate is initiate on issue had and consummate on the death of the wife.4 Kent, Comm.pp. 28-30;Cole v. Van Riper, 44 Ill. 58;Bozarth v. Largent, supra.The estate of tenancy by the curtesy initiate could be seized and sold on execution against the husband.Cole v. Van Riper, supra.The weight of authority is in favor of the position that the estate of tenancy by the curtesy initiate, as it existed under the common law, and before it was qualified by the modern statutes enlarging the rights of married women, was a vested estate, and could not be destroyed by legislation which took effect after it came into existence.We are aware that there are some authorities which hold to the contrary; but we think that they fail to distinguish between the estate as it existed before the passage of what are known as the ‘Married Women's Acts,’ and as it came to be after the passage of those acts.It will also be found, upon examination, that many of the cases cited in support of the position that the right of curtesy initiate is not a vested right do not go so far in that direction as they are claimed to go, either because they are based upon the language of particular statutes, or because their facts do not squarely present the question.It cannot be that an interest in property which can be seized on execution, and sold by creditors in payment of their debts, is not such a vested interest as the fundamental law will protect from destruction by retroactive legislation.Shortall v. Hinckley, 31 Ill. 219;Jacobs v. Rice, 33 Ill. 369;Lang v. Hitchcock, 99 Ill. 550;Gay v. Gay, 123 Ill. 221, 13 N. E. Rep. 813.In Shortall v. Hinckley, supra, where seizure of the wife, marriage, and birth of issue, had all occurred before the passage of the act of 1861, hereinafter referred to, we said: ‘At the death of Hiram Gilson, all these sisters were married, and had children then living, the issue of their several marriages.Their husbands thereby became invested with, or entitled to, a life estate in their wife's share of this property by the curtesy initiate.* * * This interest of the husband in his wife's property is a vested legal estate, subject to sale on execution or by himself.He could have leased it to the extent of the whole or any portion of the term. * * * The estate of the husband is carved out of and is a distinct estate from hers.He holds it as if he had acquired it by deed, and it is liable to all the incidents of any other freehold or life estate, until it is again merged into the fee simple.If he were to convey or lease it, the title of the grantee or lessee could not be defeated by the husband and wife joining in a subsequent conveyance.* * * Until the death of the husband, his grantee would be entitled to hold the premises,’ etc.In Rose v. Sanderson, supra, it was held that both the husband's estate during coverture and his estate as tenant by the curtesy initiate were such vested interests that the legislature could not take them from the husband and give them to the wife.Clark v. Thompson, 47 Ill. 25;Noble v. McFarland, 51 Ill. 226;Henson v. Moore, 104 Ill. 403.Cooley, in his work on Constitutional Limitations, (6th Ed., p. 440,) in speaking of the vested rights which the husband had at common law, says: ‘He could have a right as tenant by the curtesy initiate in the wife's estate of inheritance the moment a child was born of the marriage who might by possibility become heir to such estates.This right would be property, subject to conveyance and to be taken for debts; and therefore must be regarded as a vested right, no more subject to legislative interference than other expectant interests which have ceased to be mere contingencies, and become fixed.But while this interest remains in expectancy merely,-that is to say, until it becomes initiate,-the legislature may have full power to modify or even abolish it.’Wyatt v. Smith, 25 W. Va. 813.Although Bishop, in his work on the Law of Married Women, presents one view of the husband's initiate right to curtesy, which would lead to the conclusion that it could be cut off by legislation at any time before it became consummate by the death of the wife, yet he presents another view which he holds to be the better one; and ‘it is that, by the birth of a child, the estate by the marital right is extended in duration to become an estate, not for the mere joint lives of himself and wife, but for his own life; and that it is this enlarged estate, not the mere possibility, which is termed ‘tenancy by the curtesy initiate.’In this view the husband's rights cannot constitutionally be taken away after a chlid is born.'2 Bish. Mar. Wom. § 43.He gives the following as the conclusion to be derived...