Schaffler v. Handwerker

• Decision Date: 16 January 1926
• Citation: 278 S.W. 967,152 Tenn. 329
• Parties: SCHAFFLER v. HANDWERKER ET AL.
• Court: Tennessee Supreme Court

278 S.W. 967

152 Tenn. 329

SCHAFFLER v. HANDWERKER ET AL.

Supreme Court of Tennessee.

January 16, 1926

Appeal from Chancery Court, Shelby County; D. W. De Haven, Judge.

Suit by Leopold Schaffler, executor of Mrs. Annie Handwerker deceased, brought under the Declaratory Judgments Act of 1923, c. 29, against John V. Handwerker, deceased's husband, and others. From decree in favor of husband, the executor appeals. Decree modified.

Barton & Barton, of Memphis, for appellant.

Randolph & Randolph, of Memphis, for appellee.

GREEN C.J.

Mrs Annie Handwerker died testate in Shelby county September 6 1925. She left a husband, John V. Handwerker, and several children. She had been twice married, and had children by both husbands. In her will she disposed of a considerable estate, real and personal, dividing it among all her children. She bequeathed to her husband the sum of $15. The complainant, Leopold Schaffler, a son by her first husband was named as executor by the will, and the will was duly probated, and Schaffler qualified as such executor.

Thereafter the husband, John V. Handwerker, undertook to dissent from his wife's will under the provisions of chapter 44 (House Bill 316) of the Acts of 1923. He claims to be entitled under this act to a child's part of the personal property, and also claims under this act as well as chapter 126 of the Acts of 1919, to be entitled to an estate by the curtesy in the land belonging to his deceased wife.

This suit was brought by the executor under the Declaratory Judgments Statute (chapter 29 of the Acts of 1923), the husband and all the children being brought into court, to obtain a declaration as to the rights of the parties. Proper answer was made to the bill by all the defendants, and the case submitted on an agreed statement of facts.

The chancellor was of opinion that the husband was entitled to a child's part of the personal property of his late wife, and was also entitled to an estate by the curtesy in her land, and he so declared. From this decree the executor has appealed to this court.

Prior to chapter 26 of the Acts of 1913 the rights of the husband as tenant by the curtesy initiate had been reduced by statute to the privilege of renting out the wife's land as governor of the family and of collecting the rents for the benefit of the family. Travis v. Sitz, 135 Tenn. 156, 185 S.W. 1075, L. R. A. 1917A, 671. The wife had not been empowered, however, to dispose of her land by will so as to defeat the husband's curtesy consummate (Larkin v. Lightburne, 132 Tenn. 277, 177 S.W. 1154); that is, unless she held under a settlement to her separate use, excluding the husband's curtesy, which case the court said was not before it in Larkin v. Lightburne, supra.

Chapter 26 of the Acts of 1913 provided as follows:

"Married women * * * are, hereby fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal in possession, and to make any contract in reference to it and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married."

In Day v. Burgess, 139 Tenn. 527, 202 S.W. 911, L. R. A. 1918E, 692, it was held that this statute, with its comprehensive grant of powers, entitled a married woman to dispose of her land by will so as to defeat altogether her husband's right of curtesy.

But in the next case (Hull v. Hull, 139 Tenn. 572, 202 S.W. 914), it was held chapter 26 of the Acts of 1913 did not of itself abolish the estate of tenancy by the curtesy consummate, and, if the wife died without disposing of her real estate owned at the time of her death by will, the husband's curtesy attached.

In Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416, this court held that the effect of chapter 26 of the Acts of 1913 was furthermore to destroy tenancies by the entirety.

Day v. Burgess, supra, Hull v. Hull, supra, and Gill v. McKinney, supra, were decided by this court at the April term, 1918. The conclusions reached in these cases, while apparently unavoidably resulting from chapter 26 of the Acts of 1913, rather startled the profession, and there was considerable dissatisfaction with the state of the law that accrued.

At the next session of the Legislature, by chapter 141 of the Acts of 1919, chapter 26 of the Acts of 1913 was repealed. Immediately thereafter, by chapter 126 of the Acts of 1919, the Legislature re-enacted that portion of chapter 26 of the Acts of 1913 above quoted, but by section 2 of chapter 126 of the Acts of 1919 it was provided:

'That nothing in this act shall be construed as abolishing tenancies by the entirety, and as affecting the husband's right of curtesy."

From the foregoing it seems obvious that the repeal of chapter 26 of the Acts of 1913 and the enactment of chapter 126 of the Acts of 1919 was intended by the Legislature to meet and obviate the effect of the decisions of this court in Day v. Burgess, supra, and Gill v. McKinney, supra.

The repeal of chapter 26 of the Acts of 1913 restored the law to the condition existing when said act was passed, at which time the wife could not by will so dispose of her land as to defeat the husband's estate by the curtesy. We are of opinion that this earlier condition of the law was intended to be preserved and was preserved, notwithstanding the passage of chapter 126 of the Acts of 1919, by section 2 of the latter act, which forbade any construction thereof "as affecting the husband's right of curtesy."

It is earnestly argued that section 2 of chapter 126 of the Acts of 1919 was merely a legislative declaration that the act itself should not be construed to affect the husband's curtesy, and not a denial of the wife's power by will--by her act--to destroy this estate.

This argument, however, gives no force at all to the prohibition in section 2 of chapter 126 of the Acts of 1919 against a construction affecting the husband's right of curtesy. As we have heretofore seen, chapter 26 of the Acts of 1913 did not affect the husband's right of curtesy consummate, if the wife by will failed to dispose of the land of which she was seized at her death. We should have to reject, as superfluous and entirely without meaning, the effort of the lawmakers to preserve the right of curtesy, evidenced by section 2 of chapter 126 of the Acts of 1919, if we yielded to this argument made on behalf of the executor.

Properly understood, there is nothing in our later cases (Tellico Bank v. Loomis, 147 Tenn. 162, 246 S.W. 21; Pattison v. Baker, 148 Tenn. 400, 255 S.W. 710, 29 A. L. R. 1334; and Priest v. Bank & Trust Co., 148 Tenn. 87, 251 S.W. 904), that conflicts with the conclusion above indicated as to the effect of section 2 of chapter 126 of the Acts of 1919.

All these cases say that it was the intention of the act of 1919, as well as the act of 1913 to deprive the husband of his former rights with respect to his wife's property during coverture. None of them deal with the rights of the husband after the wife's death.

In Pattison v. Baker, supra, it was held that section 2 of chapter 126 of the Acts of 1919 did not restore the rights of the husband as tenant by the curtesy initiate so as to entitle him to any use of rents from the wife's land; that this section 2 of the act of 1919 dealt with tenancy by the curtesy proper or consummate.

It is concerning the husband's tenancy by curtesy consummate that a declaration is sought in this case. Under the broad powers conferred upon the wife respecting her property by the act of 1919 she has full control over it, and may dispose of it as she wishes during coverture. So the cases mentioned hold.

Neither the act of 1913 nor the act of 1919 affected the statutes of descent and distribution. They did not and were not intended to affect the marital rights of the husband save during coverture. Upon the wife's death...