Pray v. Stebbins
| Decision Date | 26 February 1886 |
| Citation | 141 Mass. 219,4 N.E. 824 |
| Parties | PRAY v. STEBBINS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. Coggan and William Schofield, for plaintiff.
A.V. Lynde, for defendant.
The real property was conveyed to Orice K. Stebbins and Ann, his wife, their heirs and assigns, by deed dated October 31 1868. At common law both husband and wife were seized 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 survivors became sole seized 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, as 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 excepted conveyance and devises to husband and wife. Pub.St. c. 126,§§ 5, 6; Gen.St. c. 89, §§ 13, 14; Rev.St. c. 59, §§ 10, 11; Wales v. Coffin, ubi supra. See Shaw v. Hearsey, 5 Mass. 520. This exception was repeated, and conveyances to husband and wife declared to create estates in common, by St.1885, c. 237; but this statute cannot affect the decision of this case, as it was passed after the plaintiff's right had become vested and his action brought.
The statutes which were enacted before this conveyance, to enable married women to take and hold property to their sole and separate use, do not in terms apply to an estate granted to husband and wife. St.1845, c. 208, § 3; St.1855, c. 304; St.1857, c. 249; Gen.St. c. 108, § 1. Neither do the statutes on the same subject enacted since this conveyance. St.1874, c. 184; Pub.St. c. 147, § 1; St.1884, c. 301; St.1885, c. 255.
In Pierce v. Chace, ubi supra, the deed to husband and wife was dated June 29, 1857, which was the day on which St.1857, c. 249, took effect. The deed was held to convey the common-law rights, although the effects of the statutes then in force, relating to the separate property of married women, was not noticed. In Hayward v. Cain, 110 Mass. 273, the deed was dated September 17, 1866, and recited a consideration paid by the husband and wife, but the grant was to the husband, and the court found that there was a resulting trust in favor of the wife in one-half of the land. But the court say:
"It is true that, if the deed had been made to them jointly, as the master reports it was their understanding it should be, it would have created an estate in them which would have been incapable of severance, (Wales v. Coffin, 13 Allen, 213,) because that is the legal construction of such a deed, and the circumstances of the purchase would not be admissible to show a different interest."
The statutes enabling a married woman to receive, hold, manage, and dispose of real and personal property in the same manner as if she were sole, cannot, we think, be construed to apply to the estate by entireties of husband and wife, because other statutes, in effect, prevent this conveyance from being construed as creating a tenancy in common; and if a married woman held this estate as if she were sole, she would hold it as a tenant in common with her husband. At common law, by a conveyance to A. and B., his wife, and C., A. and B. took one-half, and C. the other; but, if, under these statutes, B. is to take as if she were sole, A., B., and C. would each take a third, unless it were held that these statutes did not affect her rights except those between husband and wife. See Mander v. Harris, 27 Ch.Div. 166. The provision requiring the assent of the husband, in writing, to her conveyance, on his joining with her in the conveyance, or the consent of one of the judges," etc., in Gen.St. c. 108, § 3, which were in force when this conveyance was made, could not be held applicable to an estate by entireties in husband and wife, unless it be held that the husband's assent, in writing, to her conveyance, "or the consent of one of the judges," etc., either enables her to convey the estate of both, or severs the wife's interest, so that she can convey that in the same manner as if she held an interest as an ordinary joint tenant, or as tenant in common with her husband; and there are no words that indicate any such intent on the part of the legislature. Such an intent is not to be assumed when other provisions of the statutes prevent conveyances to husband and wife from being construed as creating estates in common, and when no authority is given to the husband to sever this tenancy by any conveyance which he can make, or to convey his own real property by an assent to the deed of his wife, and it was not the intention that the effect of his assenting to his wife's conveyance should be to convey any property which he had in his own right. If the wife held her interest in such a tenancy as this is to her sole and separate use, the tenancy would be destroyed, because the essential characteristic of the estate is that the interest of husband and wife in it cannot be separated; and, construing the different provisions of the statutes with reference to each other, we think it appears clear that the legislature intended that this peculiar tenancy should be preserved as it existed at common law.
The decisions in other states upon the effect of somewhat similar statutes turn more or less upon the particular terms of the statutes. For decisions that these statutes do not affect estates by entireties, see Bertles v. Nunan, 92 N.Y. 152; Marburg v. Cole, 49 Md. 402; Hulett v. Inlow, 57 Ind. 412; Hemingway v. Scales, 42 Miss. 1; McCurdy v. Canning, 64 Pa.St. 39; Diver v. Diver, 56 Pa.St. 106; Fisher v. Provin, 25 Mich. 347; Robinson v. Eagle, 29 Ark. 202; McDuff v. Beauchamp, 50 Miss. 531; Rogers v. Grider, 1 Dana, 242; Den v. Hardenbergh, 10 N.J.Law, 42. Contra: Cooper v. Cooper, 76 Ill. 57; Hoffman v. Stirgers, 28 Iowa, 302; Clark v. Clark, 56 N.H. 105.
The rights of husband and wife in this estate, therefore, must be determined by the common law. By...
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