Stuckey v. Keefe's Executors

• Decision Date: 01 January 1856
• Citation: 26 Pa. 397
• Parties: Stuckey versus Keefe's Executors.
• Court: Pennsylvania Supreme Court

26 Pa. 397

Stuckey versus Keefe's Executors.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Bedford county.

Hall and Cessna, for plaintiff in error.—Courts of law treat husband and wife as distinct persons, for many purposes, and as such capable of contracting with each other and of holding separate estates: 8 W. & Ser. 433. They may by express words be made tenants in common, by a grant to them during coverture: 4 Kent 363; Prest. on Ab. of Tit. 41; Prest. on Est., vol. 1, 132; Kennedy v. Fairfield and Chastelleux, 1 Barr 181; Johnston v. Hart, 6 W. & Ser. 319, per Kennedy, J. In case of grant to husband and wife and a third person, to one for life, one in tail and to the other for years, each takes one-third: Fitz. N. B. 194; Co. Litt. 187 b.

Jordan and King, for defendants in error.—Husband and wife are one person in law; they cannot be convicted of a conspiracy by themselves, as to commit that offence requires two persons. "If an estate in fee be granted to a man and his wife, they are neither properly joint tenants nor tenants in common, for being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." To the same effect is Coke Litt. 187; 2 Vern. 120; Jackson v. Stevens, 16 John. Rep. 115; 1 Roper on Husband and Wife, part 1, p. 51.

The principle stated in Preston on Abstracts is shown by Judge KENNEDY, in Johnston v. Hart, 6 W. & Ser. 319, to be a mere dictum; and Chancellor KENT does not fully endorse it. In the case of Bricker v. Whalley, 1 Vern. 233, a legacy was given to A., B., & C., and the wife of C., to be equally divided amongst them, and the husband and wife took but one-third. Johnson v. Hart, 6 W. & Ser. 319; Barker v. Harris, 15 Wend. 615; 3 Randolph Rep. 179; 5 Halst. 42; Clark v. Thompson, 2 Jones 274; Doe v. Parrot & Wife, 5 D. & E. 652; Shaw v. Hearsay, 5 Mass. 522; 2 Kent. 131, 2; Id. 362, 3.

The opinion of the court was delivered by LEWIS, C. J.

The land in controversy was formerly owned by Robert Hemphill, who conveyed it to William Blair and Rebecca, his wife, their heirs and assigns, as tenants in common, and not as joint tenants. William Blair died in 1830. The defendants claim under a conveyance from his widow, made in 1844. The plaintiff claims under the heirs of the deceased husband.

A conveyance to husband and wife creates neither a tenancy in common nor a joint tenancy. The estate of joint tenants is a unit made up of divisible parts; that of husband and wife is also a unit; but it is made up of indivisible parts. In the first case there are several holders of different moieties or portions, and upon the death of either, the survivor takes a new estate. He acquires by survivorship the moiety of his deceased co-tenant. In the last case, although there are two natural persons, they are but one person in law, and upon the death of either, the survivor takes no new estate. It is a mere change in the properties of the legal person holding, and not an alteration in the estate holden. The loss of an adjunct merely reduces the legal personage holding the estate to an individuality identical with the natural person. The whole estate continues in the survivor the same as it would continue in a corporation after the death of one of the corporators: 1 Dana 244; 7 Yerger 319. This has been the settled law for centuries. The distinction may seem a nice one, but it is founded upon the nature of marriage and the rights and incapacities which it establishes: Co. Lit. 6; 1 Thom. Coke 853; 2 Bl. Com. 182; 5 T. R. 652; 2 Vern. 233; Skin. 182; 19 Wend. 175; 3 Rand. 184; 5 John. Ch. R. 437; 7 Yerger 319; 1 Barr 176; 6 W. & Ser. 319.

But it is argued for the plaintiff that this is merely a rule of construction for the purpose of ascertaining the meaning of the words usually found in conveyances to husband and wife, and that where a deed expressly conveys an estate to them, to hold as tenants in common, they may receive it, and hold it accordingly. Mr. Preston, in his work on "Estates," vol. 1, p. 132, has probably originated this idea. He says that "where lands are granted to husband and wife, as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties as other distinct individual persons would do." He cites no authority to sustain this position, unless his reference to 1 Inst. was intended for that purpose. But that citation is far from sustaining any such doctrine. It is there said that if a lease be made to A. for life, to a husband in tail, and to a wife for years, each has a third part, in respect to the severalties of their estates." We do not see how it could be otherwise. The wife, under her lease for years, acquired no interest in the husband's estate in tail, and could have no claim to hold it as survivor in case of the death of the husband; and the husband, by virtue of a conveyance to himself in tail, certainly acquired no interest in his wife's term. The interest which each would acquire in the estate of the other would not be through the grant to the party acquiring it, but would be such as the law of marriage carves out of the estate granted to his or her companion. It is therefore plain that there can be no holding by entirety in such a case, where there is a grant of a separate estate distinct in its nature, to each. Mr. Preston himself, in his "Abstracts," vol. 2, p. 41, qualifies his position very considerably. He there tells us that "a husband and wife may, by express words (at least so the law is understood), be made tenants in common by a gift to them during coverture." For this he cites no authority whatever. An examination of the authorities will fully show that he was entirely mistaken in the reason on which the rule is founded, as well as in regard to the existence of the alleged exception to it. This we think has been satisfactorily shown by the Assistant Vice-Chancellor, in the case of Dias & Burn v. Glover, 1 Hoffman's Ch. Rep. 71.

If the doctrine to which we refer is not a mere rule for ascertaining the meaning of words, but a rule of law founded on the rights and incapacities of the matrimonial union, it must be obvious that the intention of the parties to the conveyance is entirely immaterial. If husband and wife cannot take a conveyance by moieties, if they are absolutely incapable of receiving such a grant, it is clear that no words in the conveyance to them, however clearly expressed, can give them that capacity. How stands the argument on this question? Tenants in common may sell their respective shares. They are compellable to make partition. They are liable to reciprocal actions of waste and of account; and, if one turns the other out of possession, an action of ejectment will lie against him. These incidents cannot exist in an estate held by husband and wife. No action of partition, or waste, or account, or ejectment, can be maintained by one against the other. The husband could not sell his moiety free from the dower of his wife. The wife could not sell hers at all without the consent of the husband. It is evident, therefore, that the estate, during the lives of the grantees, or during the continuance of the marriage bond, would have none of the chief incidents of a tenancy in common. The existence of a tenancy in common, which cannot be so held or enjoyed during the lives of the holders, and which has none of the incidents of such an estate, is a legal impossibility. If they cannot hold in common during their lives, of course they cannot so hold after one of the parties is dead.

But there is a charm in the equity of equality; and this inclines the mind at first blush to hold that the grantees are entitled to take in equal parts — that is, by moieties. Let us pause to look at the equitable manner in which such a doctrine would operate, where the grantees were husband and wife. The husband may dispose of his moiety so that the wife can never enjoy any part of it, during his life, and at his death she could only receive one-third of it for life. Even this she would be deprived of, if...