Monroe v. Meter
| Decision Date | 30 September 1881 |
| Citation | 1881 WL 10628,100 Ill. 347 |
| Parties | LEWIS MONROEv.THORNTON L. VAN METER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Coles county; the Hon. J. R. CUNNINGHAM, Judge, presiding.
Mr. A. J. FRYOR, for the appellant:
“When a man marries a woman seized at any time during the coverture of an estate of inheritance in severalty, in coparcenary, or in common, and hath issue by her born alive, and which might by possibility inherit the same estate, as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life by the curtesy.” Blackstone's Com. book 2d, p. 126 (Sharswood edition); 4 Kent's Com. p. 27.
Curtesy was not abolished by Married Woman's act of 1861. Armstrong et al. v. Wilson, 60 Ill. 227; Cole v. Van Riper, 44 Id. 58; Clark v. Thompson, 47 Id. 26; Beach v. Miller, 51 Id. 206; Rose v. Sanderson, 38 Id. 247.
If there be a limitation of a legal estate to a woman and her heirs, with a condition annexed that her husband, after issue, shall not be tenant by the curtesy, he shall, notwithstanding, be entitled to it, for such a condition is void, being repugnant to the nature of the gift, of which curtesy is one of the incidents. Clancy's Husband and Wife, p. 191; Mildmay's case, 6 Rep. 41; 1 Washburne on Real Prop. 133, par. 15.
“But if there be a gift of an equitable estate of inheritance, accompanied by an express provision that the husband shall not be tenant by the curtesy, a court of equity will enforce a compliance with the intention of the donor.” Clancy's Husband and Wife, page 191. Under the statute relating to attachments, the right of a third party to interplead extends to real estate which may be attached. City Ins. Co. v. Commercial Bank, 48 Ill. 349; Williams v. Van Meter, 19 Id. 293.
This being a suit in attachment, the levy involves the freehold, and the appellees having the right to interplead, and having done so, directly involves the freehold interest of James VanMeter.
Messrs. DUNN & CONNOLLY, for the appellees:
The estate by the curtesy having been abolished July 1, 1874, it became necessary for the appellant to show that the estate was vested in James VanMeter before that date. This he has failed to do. He has shown the marriage, seizin and death of the wife, but he has failed to show the birth of issue before the statute took effect. “There are four requisites necessary to make a tenancy by the curtesy: marriage, seizin of the wife, issue, and death of the wife.” 1 Blackstone's Com. 127.
Until the birth of issue the husband has no interest in his wife's lands. Until that time no right whatever vests in him, for he is not even tenant by the curtesy initiate before that event. I. B. and W. Ry. Co. v. McLaughlin, 77 Ill. 275.
“As soon as a child is born, the husband's right to curtesy is said to be initiate, and is consummate only upon the wife's death.” 1 Washburne on Real Prop. 140.
When the settler or testator so wills, the husband may be excluded from the curtesy, though the wife is seized of an estate of inheritance. Stokes v. McKibben, 13 Pa. St. 267; Morgan v. Morgan, 2 Mad. 408; Bennett v. Davis, 2 P. Wms. 316; Hearle v. Greenbank, 3 Atk. 660; Cochran v. O'Hern, 5 W. & S. 95; Rigler v. Cloud, 14 Pa. St. 361; Pool v. Blakie, 53 Ill. 495.
Since the act of 1861, the husband has no control over his wife's lands, and no interest in them subject to execution. His interest, “at best, is now a bare possibility.” Martin v. Robson, 65 Ill. 129; Cole v. Van Riper, 44 Id. 58; Beach v. Miller, 50 Id. 206. This bare possibility is not liable for his debts, and all that can be affected by the fifth clause of the will is the estate by the curtesy after the wife's death. If that is not affected, the whole clause is without meaning.
Since the power exists, where the intention is expressed, to limit the estate so as to exclude the husband's curtesy, there is no reason why the right should not be enforced in a court of law. But whether legal or equitable, appellees' rights may be preserved in this proceeding. These appellees interplead under the statute, sec. 29, chap. 11, Rev. Stat. 1874, p. 157. Under this section, the right exists where real estate only is attached. Williams v. Van Meter, 19 Ill. 293; City Ins. Co. v. Commercial Bank, 68 Id. 348; Gardner et al. v. Com. Nat. Bank, 95 Id. 298.
This was an action of attachment, brought by Lewis Monroe against James VanMeter, a levy having been made on certain real estate in Coles county. Appellees appeared and interpleaded, claiming to own the property levied upon under the writ of attachment. Upon a trial of the issue presented by the pleadings the court found in favor of appellees, and rendered judgment against the plaintiff in the attachment for costs. To reverse this judgment an appeal was taken to this court.
The first question presented by the record is, whether an appeal will lie directly to this court. If a freehold is involved, then the appeal was properly taken; otherwise it will have to be dismissed. In an ordinary attachment, where a levy is made upon real estate, it is plain that a freehold would not be involved. But in this case, after the writ had been levied on the real estate involved, appellees, who were not parties to the proceeding, appeared, as they had the right to do under sec. 29, Rev. Stat. 1874, p. 157, and interpleaded, claiming to own the property. In the plea it was, among other things, averred “that they are the owners in fee simple of the said property so levied on and attached, and this they are ready to verify,” etc. To the interpleader the plaintiff filed a replication, in which he averred “that the said James L. VanMeter had, at the time of the levy of the attachment writ in this case upon the lands in said interpleader mentioned, a life estate in the said premises and lands, and now has such life estate,” etc. To this replication a rejoinder was filed by appellees, in which they averred that they were the owners in fee of the premises, as set up in their plea of interpleader, and that the said James L. VanMeter did not, at the time of the levy of the writ of attachment, or at any other time, have a life estate in the premises.
It will be observed, that under the pleadings the issue made and to be determined by the evidence was one of title to the land levied on by the writ of attachment. On the one hand it was claimed that the defendant in the attachment owned a life estate in the premises, while on the other hand appellees, who were his...
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