Myers v. Hansbrough

• Decision Date: 28 March 1907
• Citation: 202 Mo. 495,100 S.W. 1137
• Parties: MYERS v. HANSBROUGH.
• Court: Missouri Supreme Court

100 S.W. 1137

202 Mo. 495

MYERS v. HANSBROUGH.

Supreme Court of Missouri, Division No. 1.

March 28, 1907.

1. CURTESY—PROPERTY SUBJECT TO CURTESY.

Rev. St. 1899, § 4335 [Ann. St. 1906, p. 2378], confers on a married woman power to contract debts as a feme sole. Under section 4340 [Ann. St. 1906, p. 2382], a married woman's real estate is her separate estate; she being given the sole right to its possession, rents and profits. Held, that the husband's estate by the curtesy remains, as at common law, free from the debts of the wife, but he is deprived of his common-law right to the possession of his wife's lands during coverture; his curtesy becoming consummate upon the death of the wife.

2. SAME.

Where the marriage occurred before the enactment of section 4340 [Ann. St. 1906, p. 2382], and the wife owned the land before that enactment, the husband's rights are as they were at common law, the statute being prospective, not retrospective.

Appeal from Hannibal Court of Common Pleas; D. H. Eby, Judge.

Action by Peter F. Myers against Jerry T. Hansbrough, public administrator in charge of estate of Margaret R. Myers, and Jerry T. Hansbrough. From a judgment for plaintiff, defendant appeals. Affirmed.

R. E. Anderson and J. J. Henderson, for appellant. Thomas H. Bacon, for respondent.

VALLIANT, P. J.

This is an action of ejectment. The property in question, consisting of several lots and tenements in the city of Hannibal, belonged to Margaret R. Myers, deceased, in her lifetime. She died intestate, seised, and possessed of the property, January 18, 1902. Her title to the various lots was that of an absolute legal estate in fee simple; to some of the lots her title was derived before the amendment of the married woman's statute in 1889, and some afterwards. She left surviving her her husband, the plaintiff, and two sons of her marriage with him. The defendant is the public administrator of Marion county, and, as such, has charge of the estate of Margaret R. Myers, deceased. Under an order of the probate court, made under authority of section 130, Rev. St. 1899 [Ann. St. 1906, p. 379], the defendant has taken possession of the real estate in question for the purpose of collecting the rents for the payment of debts. That order is the sole foundation of his claim of right to the possession. Plaintiff claims that he is entitled to possession by virtue of his estate by the curtesy. The trial court rendered judgment for the plaintiff for possession, damages, and costs, and the defendant appealed.

Defendant concedes that the plaintiff has an estate by the curtesy in the property, and that by the common law he would be entitled to the possession; but contends that, under section 4335, Rev. St. 1899 [Ann. St. 1906, p. 2378], which confers on a married woman power to contract debts as a feme sole, the estate derived by the husband from the wife comes to him burdened with her debts. The error in that theory consists in assuming that the husband's estate by the curtesy is derived from the wife. The estate by the curtesy is created by the law, and is as independent of the wife as is the wife's dower independent of the husband. It is dependent for its creation on certain facts, one of which is that the wife in her lifetime, and during the marriage, was seised of an estate of inheritance, but that fact given and the other conditions having existed, the law by its own force creates the estate. From 12 Cyc. the following definitions are taken: "Curtesy is the estate to which by common law a man is entitled on the death of his wife to the lands or tenements of which she was seised in possession in fee simple or fee tail during coverture, provided they had lawful issue born alive which might have been capable of inheriting the estate." Page 1002. And in a note to the text it is said: "It is a freehold estate in the husband for his natural life cast upon him by operation of law immediately upon the happening of the necessary incidents." The same author further says: "Curtesy initiate becomes a vested interest as soon as it attaches to the wife's estate, and cannot be modified or abolished by the Legislature of the state; but until it attaches it is a mere right, and may be modified or destroyed. When vested, curtesy initiate is an estate in the husband for his natural life separate and distinct from the estate of the wife." Id. pp. 1003, 1004. And again: "On her death the surviving husband, if all other requisites have existed, becomes vested with a freehold estate known as curtesy consummate." Id. p. 1008.

Estate by the curtesy is not a creation of a statute. It is created by the common law. We do not find it mentioned in the writings of the common law that the estate by the curtesy is free from the burden of the wife's debts, as we do find it said that the widow takes her dower free from the husband's debts; but the reason for that is that by the common law the wife could make no debts. But the estate by the curtesy which we have is as it came to us through the common law, and is affected by our statutes only as they expressly or by necessary implication affect it. Under section 6869, Rev. St. 1889 (now section 4340, Rev. St. 1889 [Ann. St. 1906, p. 2382]), a married woman's real estate is her separate estate. She is given the sole right to its possession, its rents and profits. The husband is thereby deprived of his common-law right to the possession of his wife's land during coverture, and to that extent his curtesy initiate is impaired, but it is not destroyed, and upon the death of...