Miner v. Brown

• Decision Date: 24 May 1892
• Parties: MINER v. BROWN et al.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 308

31 N.E. 24

MINER

v.BROWN et al.

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, fourth department.

Action of ejectment by George Miner against Clark N. Brown, Ella Brown, and Eliza S. Brown. A judgment for plaintiff was affirmed by the general term, and defendants appeal. Reversed.

Charles H. Searle, for appellants.

H. M. Aylesworth, (H. H. Harrington, of counsel,) for respondent.

MAYNARD, J.

In view of the legal effect which must be given to the devise in the will of Adin Brown to the defendants Clark N. and Ella Brown, an estate of tenancy by the entirety was not created. It is therefore unnecessary to consider or determine the interesting and important questions, so ably presented by learned counsel, whether, during the joint lives of husband and wife, such an estate can be sold for the debts of the husband, and possession taken, or whether chapter 472 of the Laws of 1880 has not modified or abrogated the common-law right of the husband to the exclusive possession of the property during coverture.

Adin Brown's will was executed in 1882, and probated in 1883, and is the common source of title of both parties to this action. In the second clause he gave to his son, and to his son's wife, ‘the use of the farm and lot on which the said Clark N. Brown now resides,’ etc., ‘for their use, benefit, and support during their natural lives,’ etc. Before the execution of the will the plaintiff had recovered two judgments in the supreme court, amounting to $850, against Clark N. Brown, and, some time after its probate, he issued executions thereon, sold the interest of the judgment debtor in this farm, and became the purchaser at the sale. In due time the plaintiff received the sheriff's deed, and brought this action of ejectment, in which he has obtained a judgment against both defendants, awarding him possession of the entire farm. It is conceded that this judgment cannot stand unless the defendants held the lands, upon the death of their testator, as tenants by the entirety. It is still the law of this state that, where a grant is made to husband and wife without any words specially prescibing, qualifying, or characterizing the kind or quality of the estate which each shall take, the grantees hold as tenants by the entirety. Bertles v. Nunan, 92 N. Y. 152. There was, in such cases, at common law a unity of seisin and of possession during their joint lives, which seemed to invest the husband with the exclusive use and control of the property, and which deprived the wife of all the practical benefits of its immediate enjoyment. This anomalous condition resulted from the unity of the parties to the marriage contract, whereby, as stated by Blackstone, ‘the very being and legal existence of the woman is suspended during the marriage, or, at least, incorporated and consolidated into that of the husband.’ It was merely a legal fiction, which still survives in a form greatly abridged by modern legislation, and its application was frequently the cause of much hardship and great injustice. We therefore find a disposition manifested, at a very early period in the history of English law, to limit its extension, and to hold that a husband and wife may, by express words, be made joint tenants, or tenants in common, by a gift or conveyance to them during coverture, and that every grant to them is to have just such effect, in respect to the estate which they take, as was intended to be created. Shep. Touch. 132; 2 Prest. Abst. tit. 41; 2 Kent, Comm. 133, note 2. In Preston on Estates (volume 1, p. 132) it is said: ‘In point of fact, and agreeable to natural reason, the husband and wife are distinct and individual persons, and accordingly, when lands are granted to them as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties, as other distinct and individual persons will do.’ Citing 1 Just. Inst. 187. In Hicks v. Cochran, 4 Edw. Ch. 107, the vice chancellor applied this rule, and held that, where there were words in a conveyance to husband and wife strongly expressive of a tenancy in common in equal...