Phelps v. Simons

• Decision Date: 23 June 1893
• Citation: Phelps v. Simons, 159 Mass. 415, 34 N.E. 657 (Mass. 1893)
• Parties: PHELPS v. SIMONS et al.
• Court: Supreme Judicial Court of Massachusetts

159 Mass. 415

34 N.E. 657

PHELPS v. SIMONS et al.

Supreme Judicial Court of Massachusetts, Hampden.

June 23, 1893

COUNSEL

Jas Bliss, for complainant.

J.E McIntire, for defendants.

OPINION

LATHROP, J.

This is a bill in equity against Catharine L. Simons, and Simeon B Simons, her husband. Sarah C. Simons, the mother of Simeon, died on April 8, 1872. By her will, dated October 31, 1870, which has been duly admitted to probate, she devised and bequeathed the residue of her estate, real and personal, to her "son, Simeon B. Simons, and his wife, Kate L. Simons, and to the survivor of them, and the heirs of such survivor, to have and to hold the same forever." Sarah died possessed, among other property, of 12 shares of the capital stock of the Second National Bank of Springfield. On December 3, 1872, said bank issued a certificate of said shares, in which it is set forth that "Simeon B. Simons, and his wife, Kate L. Simons, and the survivor of them, and the heirs of such survivor," are proprietors of 12 shares of the capital stock of said bank. The answer of the defendant Catharine, which is found to state the facts correctly, sets forth that she has possession of said certificate, "which was left in her possession several years since by her said husband." On October 15, 1891, Simeon B. Simons, by an instrument in writing, undertook to sell said certificate, and the 12 shares of stock represented thereby, to the plaintiff, for a valuable consideration. He also, by the instrument, appointed the plaintiff his attorney to make the transfer. The bank refused to make the transfer until the outstanding certificate was delivered up, and Catharine refused to deliver up the certificate. The prayer of the bill is that Catharine be ordered to produce the outstanding certificate, and to deliver the same to the plaintiff. In 1870, when this will was made, and in 1872, when it was admitted to probate, the General Statutes were in force; and it was provided by chapter 108, § 1, that "the property, both real and personal, which any married woman now owns as her sole and separate property, that which comes to her by descent, devise, bequest, gift, or grant, *** shall, notwithstanding her marriage, be and remain her sole and separate property." Mr. Justice HOLMES, Mr. Justice BARKER, and the writer of this opinion think that, under this statute, Simeon B. Simons had no power to alienate his wife's interest, believing that the case of Pray v. Stebbins, 141 Mass. 219, 4 N.E. 824, which relates to the validity of a lease made by a husband while the joint tenancy continued, has no bearing on the question. The same justices also think that, whatever may be the effect of the various statutes then in force as to the estate which the husband and wife took, the wife was entitled, as between herself and her husband, to one-half to her separate use. See Mander v. Harris, 27 Ch.Div. 166; Jupp v. Buckwell, 39 Ch.Div. 148. But the other justices are of opinion, on the authority of Pray v. Stebbins, that Gen.St. c. 108, § 1, does not apply, and we proceed to consider the case irrespective of the statutes relating to married women.

At common law, a devise to husband and wife vested in them an estate by entireties; not strictly a joint tenancy, but as said by Mr. Justice Wells, in Wales v. Coffin, 13 Allen, 213, 215, "one indivisible estate in them both, and the survivor of them." See, also, Pierce v. Chace, 108 Mass. 254; Pray v. Stebbins, ubi supra; Donahue v. Hubbard, 154 Mass. 537, 28 N.E. 909; Morris v. McCarty, (Mass.) 32 N.E. 938. While the husband has the entire right to the use and benefit of the estate during coverture, (Pray v. Stebbins, ubi supra,) he cannot alienate it. Thus, in Fox v. Fletcher, 8 Mass. 274, where land was devised to a husband and wife, the wife who survived her husband was held entitled to maintain a real action against a grantee in fee of her husband. So in Donahue v. Hubbard, ubi supra, it was said by Mr. Justice Allen: "The peculiar feature of this kind of estate is that each is secure against an impairment of rights through the sole act of the other." The bequest in this case is to the husband and his wife, "and the survivor of them, and the heirs of such survivor." A conveyance in this form, at common law, to persons not husband and wife, would give a joint estate for life, and a contingent remainder to the survivor. Cruise, Dig. tit. 18, c. 1, § 2; 1 Greenl. Cruise, 364a; Co. Litt. 191a. In re Harrison, 3 Anstr. 836; Vick v. Edwards, 3 P. Wms. 372; Hannon v. Christopher, 34 N.J.Eq. 459. The plaintiff admits that at common law a bequest to husband and wife vests in them an estate by entireties. See Gordon v. Whieldon, 11 Beav. 170; Atcheson v. Atcheson, Id. 485. He contends, however, that as, at common law, a husband may dispose of his wife's personal property as he pleases, he has the same right where the property is held by entireties. None of the cases which he cites for this position support it. There is no doubt that shares of stock may be bequeathed to a wife for life, with remainder to B. In such a case, at common law, the husband could dispose of only the life interest of his wife in the shares; and, where the shares are left by will to a husband and wife, the latter takes a life interest with her husband, and a remainder contingent on her surviving him. With the latter a court of equity will not permit him to meddle. In Atcheson v. Atcheson, 11 Beav. 485, where a legacy was left to a husband and wife, it was held that the wife's right to it by survivorship was entitled to protection; and it was ordered that the legacy be carried to the joint account of the husband and wife, with a direction to pay the dividends to the husband during their joint lives, with liberty, on the death of either, for the survivor to apply. In Moffatt v. Burnie, 18 Beav. 211, a bequest was made to A. and his wife, for their lives, with remainder over, and it was held that the husband and wife took, not in joint tenancy, but for their joint lives and the life of the survivor. In Ward v. Ward, 14 Ch.Div. 506, where a husband and wife held an annuity by entireties, it was held that the whole of it was, during their joint lives, liable to the husband's debts, but the order was only to pay during the life of the husband. See, also, Godfrey v. Bryan, 14 Ch.Div. 516; Craig v. Craig, 3 Barb.Ch. 76, 105.

It follows, in the opinion of a majority of the court, that Mrs Simons will be entitled to the shares of stock should she survive her husband. The mere fact that the husband placed the certificate in the possession of his wife gave her no additional rights. Cummings v. Cummings, 143 Mass. 340, 9 N.E. 730. The result is that the plaintiff is entitled to the dividends on the...