Neely v. Lancaster

• Decision Date: 05 June 1886
• Citation: 1 S.W. 66
• Parties: NEELY <I>v.</I> LANCASTER.
• Court: Arkansas Supreme Court

1 S.W. 66

NEELY

v. LANCASTER.

Supreme Court of Arkansas.

June 5, 1886.

Appeal from Yell circuit court

Ejectment by purchaser from heir against surviving husband in possession as tenant by the curtesy. Judgment for defendant, and plaintiff appeals.

Hall & Carter and W. N. May, for appellant. Jacoway & Jacoway and Davis & Bullock, for appellee.

COCKRILL, C. J.

The action in this case is ejectment. Mary Jane Wicker acquired title to the lands in controversy by descent from her father, in 1861. In 1881, being still seized in fee of the lands, she intermarried with John L. Lancaster, the appellee. A child, capable of inheriting the estate, was born of this marriage, and in 1883 the wife died without living issue, and without making, or attempting to make, any disposition of the land. The husband continued in possession, when the appellant, who is admitted to be the vendee of the rightful heir at law, brought this action against him. The appellee, in his answer, set forth the facts substantially as stated. A demurrer to the answer was overruled, the plaintiff submitted to judgment, and appealed.

The question is, has curtesy been abolished by the married woman's enabling provisions contained in the constitution and statutes? Article 9, § 7, of the constitution of 1874 is as follows: "The real and personal property of any feme covert, in this state, acquired either before or after marriage, whether by gift, grant, devise, or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed, or conveyed by her, the same as if she were a feme sole; and the same shall not be subject to the debts of her husband." Section 4624, Mansf. Dig., which is taken from the act of April 28, 1873, declares that the property of a married woman, together with the rents and profits thereof, whether acquired before or after marriage, "shall, notwithstanding her marriage, be and remain her sole and separate property; and may be used, collected, and invested by her in her own name; and shall not be subject to the interference or control of her husband, or liable for his debts."

Curtesy has not been the subject of legislative enactment in this state, and the common law upon that subject prevails, except as modified or changed by the provisions above quoted. They contain no express exclusion of the husband's marital rights in the deceased wife's property, and if the incidents of marriage as recognized by the common law are abrogated by them, it is because the rights which they secure to the wife are inconsistent with the husband's common-law rights. To the extent of the inconsistency between the positive provisions of the law and the rules of the common law, the latter must, of course, yield and give place to the former. That the wife may hold her lands to her separate use, free from the interference of her husband and his creditors, is plain, from the terms of the written law. In the absence of regulating statutes or constitutional provisions, she would not enjoy these rights, for the immediate effect of coverture would be to invest the husband with the usufruct of her real estate, and, upon the birth of issue capable of inheriting the estate, he would take an enlarged life-interest in it, and would become what was termed a "tenant by the curtesy initiate," with power to convey his estate without the wife's concurrence. That it was the purpose of the provisions quoted to abolish this feature of the tenancy by the curtesy, and thereby exclude the rights of the husband during coverture, their terms leave no room to doubt. Hitz v. National Bank, 111 U. S. 729-731; S. C. 4 Sup. Ct. Rep. 613.

The same result was easily reached before the enactments referred to by a conveyance to the wife, or to a trustee for her sole and separate use, and the intention of the grantor in such conveyances to modify or totally exclude the husband's marital rights, we gather from the language employed, was the test of the interest that he acquired in the lands so held by his wife. It was always admitted that the question, in courts of equity, at least, was one not of power to exclude the ordinary marital rights of the husband, but of intention. It accordingly became a settled rule that if a legal or equitable estate of inheritance was limited simply to the separate use of a married woman, no intention was manifested to exclude the husband's ultimate estate, and upon issue born, and death of the wife, he took his curtesy out of it. The fact that the rents and profits were expressly secured to the wife's separate use, and the estate in terms exempted from liability for the husband's debts, it is said did not alter the rule; and the same was true of a like estate settled upon the wife, or in trust for her, with power to convey or to direct by will, or otherwise, the person to whom the land should be conveyed, if at her death the power remained unexecuted. The cases all concede that the intention of such...