Pease v. Inhabitants of Whitman

• Decision Date: 05 January 1903
• Citation: 65 N.E. 795,182 Mass. 363
• Parties: PEASE v. INHABITANTS OF WHITMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 363

65 N.E. 795

PEASE v. INHABITANTS OF WHITMAN.

Supreme Judicial Court of Massachusetts, Plymouth.

January 5, 1903

COUNSEL

Wm.

J. & Daniel R. Coughlan, for plaintiff.

C. H. Edson, for defendant.

OPINION

KNOWLTON, C.J.

The only question in this case is whether a conveyance of real estate to a husband and wife, prior to St. 1885, c. 237, gave a title to the husband which he alone could alienate in his lifetime by a deed which would bar the right of his wife in the property, as his survivor, after his death. The question is answered by decisions of this court. In Pray v. Stebbins, 141 Mass. 219-221, 4 N.E. 824, 825, 55 Am. Rep. 462, the court says: 'At common law both husband and wife were seised of the estate thus granted per tout et non per my,--as one person, and not as joint tenants or tenants in common. There could be no severance of such an estate by the act of either, and no partition of the land during their joint lives, and the survivor became sole seised of the entirety of the estate. Pierce v. Chace, 108 Mass. 254; Wales v. Coffin, 13 Allen, 213. This tenancy by entireties is essentially a joint tenancy, modified by the common-law doctrine that husband and wife are one person, and was not changed by our statutes enacting that 'conveyances and devises of land made to two or more persons shall be construed to create estates in common and not in joint tenancy, unless,' etc., because, among other reasons, the statute expressly excepts conveyances and devises to husband and wife. * * * This exception was repealed, and conveyances to husband and wife declared to create estates in common, by St. 1885, c. 237.' This statement of the law completely covers the case at bar. See, also, Donahue v. Hubbard, 154 Mass. 537, 538, 28 N.E. 909, 14 L. R. A. 123, 26 Am. St. Rep. 271; Phelps v. Simons, 159 Mass. 415-417, 34 N.E. 657, 38 Am. St. Rep. 430.

St. 1885, c. 237 (Rev. Laws, c. 134, § 6), cannot affect this case, because the rights of the wife became vested under the deed of October 18, 1883, before the statute was enacted.

Judgment on the verdict.