Opinion
March 20, 1933.
Suit for divorce by Owen G. Sidwell against Josephine E. Sidwell, who filed a petition for a property allowance before a decree for complainant became final.
Petition dismissed.
Superior Court for New Castle County, petition for divorce, No. 212, September Term, 1931.
It appeared that Josephine E. Sidwell, the petitioner, and Owen G. Sidwell had been husband and wife. A decree nisi, in divorce, dated January 4. 1931, had, however, been granted Owen G. Sidwell on the ground of desertion. Before the decree became final, a petition was filed on behalf of Josephine E. Sidwell, asking for a property allowance to her.
The statute (Rev. Code) provided as follows:
"Section 3018: When a divorce shall be decreed for the aggression of the husband, the complainant shall be restored to all her real estate, and be allowed out of her husband's real and personal estate such share as the Court shall think reasonable, but if the divorce be for the wife's aggression the Court may restore the whole or a part of her real estate, and also such shares of her husband's personal property as may seem reasonable." "Section 3019: Any such allowance or division of the property, may be by a gross sum, or an equal allowance, or an assignment by metes and bounds; and the Court may appoint commissioners to execute any order in the premises and may issue writs of possession as in the case of land sold on execution process."
Testimony was taken, and it was also admitted, that the real estate owned by either or both of the parties consisted solely of a house in the name of Owen G. Sidwell, and two other houses built upon a lot conveyed, while they were married, to Owen G. Sidwell and Josephine E. Sidwell, his wife, as tenants by the entirety. The testimony (largely in dispute), tended to show that while the parties were living together the husband operated a store, subsequently the husband obtained a position and the wife operated the store. The testimony was in violent conflict as to the time of incurring of certain debts, some discharged and some still in existence, and whether they were incurred during the management of the store by the husband or that of the wife.
The petition for a property allowance specifically alleged that the husband had received the rents from the two houses held as tenants by the entirety since August 2, 1929, the date of the separation, and asked for an accounting of these rents. The petition also asked that the wife be restored to her real estate and be granted such part of her husband's personal estate as might seem reasonable.
John W. Huxley, Jr., of Wilmington, for plaintiff.
W. Thomas Knowles, of Wilmington, for defendant.
RODNEY, J., sitting.
I shall first consider the matter of the real estate.
[1, 2] The statute expressly states that in a divorce for the aggression of the wife she shall be "restored" to a whole or a part of her real estate. I am clearly of the opinion that in such a case the word "restored" gives to the statute a meaning that there shall be returned to the wife or that she shall be reinvested with the real estate or a part thereof which she had at the time of marriage or which she acquired during the marriage and as to which the husband had obtained some right or rights by virtue of the marriage. The wife had no real estate at the time of her marriage and has acquired none during the marriage with the exception of whatever interest she holds as tenant by the entirety. An estate by the entirety has very peculiar characteristics. It is not necessary here to elaborate upon it. Many are set out in Heitz v. Sayers, 2 W. W. Harr. (32 Del.) 207, 121 A. 225, 228; Hurd v. Hughes, 12 Del. Ch. 188, 109 A. 418; Kunz v. Kurtz, 8 Del. Ch. 404, 68 A. 450. While it is true that in Heitz v. Sayers, supra, it is held that the interest of a wife in an estate by the entirety constitutes her "sole and separate property" within the contemplation of the Married Women's Act (Rev. Code 1915, c. 87), yet as pointed out in cited cases the rights of the wife or other owner may be and are limited by any legal restrictions arising from the nature of the estate. One predominant incident of an estate by the entirety is that the holders thereof hold nothing in severalty during the marriage, but their tenure is by entirety.
In the present case no final decree in divorce has yet been granted. It is unnecessary to consider the effect of the final decree upon the estate by entirety. That question has not been considered in Delaware in any reported case, but there have been a number of partition causes in the Orphans' Court brought after divorce, to partition real estate which had been conveyed to the parties during marriage by estates by entireties. In re Joseph, 15 Del. Ch. 455, 133 A. 696; In re Richard (1931) O. C. Record New Castle County V-3-466.
In these cases the tenants by entirety, after divorce, were treated as tenants in common. This is in accord with the great weight of authority. Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N. E. 685, 52 A.L.R. 886, and the authorities cited therein and in 52 A. L. R. 890 and 59 A. L. R. 718. The rule in Pennsylvania and one or two states is otherwise. Alles v. Lyon, 216 Pa. 604, 66 A. 81, 10 L.R.A. (N.S.) 463, 116 Am. St. Rep. 791, 9 Ann. Cas. 137; O'Malley v. O'Malley, 272 Pa. 528, 116 A. 500.
I am of the opinion that the interest of the wife in an estate by entirety is not such real estate as could be "restored" to her under the provisions of the statute. It is not suggested that this Court has any power in the premises, except as such authority is derived from the statute itself. In 2 Bishop in Marriage Divorce, § 1117, it is said that the statutes authorizing the division of property are the sole foundation for it.
Keezer on Marriage and Divorce, § 675, states
"That the power of the courts to deal with the property rights of the parties to a divorce proceeding is wholly statutory. In the absence of statutory authority the Courts may not determine such rights."
Two. As to the personal property:
When the statute provides that the Court may decree to the wife such part of the husband's personal property as may seem reasonable, it means, I think that the Court must act upon the personal property owned by the husband or in which he has an interest at the time of the application for division or, possibly, at the time of the filing of the petition for divorce. It cannot embrace personal property to be acquired in the future, nor personal property owned in the past, but in which he has now no interest, unless perhaps such personal property has been disposed of to defeat the jurisdiction of the Court. It is not suggested that this has happened, nor is it shown that at present the husband is possessed of any personal property whatever. If the determination of the personal property owned at the time of the filing of the petition for divorce or at the time of the application for division of the property, then it is difficult to see what yardstick of the law could be used to measure or determine what proportion could be deemed "reasonable" to assign to the wife. In Grubb v. Grubb, 1 Har. 516, under a statute ( 8 Del. Laws 176) almost exactly similar to the present, the Court, in restoring the wife's property, considered also waste committed by the husband, but restricted the waste to that done after the petition was filed.
[5, 6] This Court is asked to have an accounting of the rents received by the husband as tenant by the entirety and if a balance is disclosed over the expenses paid, then to decree such balance, or a part thereof, to the wife, as presently existing personal property under the statute notwithstanding the fact that such balance, if any there ever was, is not now in possession. This Court has no such power. While the statute does grant to the common law Court hearing the divorce certain equitable powers, yet these powers are statutory and to be exercised within the limits prescribed by the statute itself. There is no power to decree a general account, nor to draw the distinction between the right to receive the rents from an estate by entirety after the separation of the husband and the wife and the right to receive such rents before the date of such separation. The authorities on the question of the right to rents arising out of property held as an estate by entirety are not in entire harmony and are collected in the note in 27 A. L. R. 264.
There being no real estate or personal property over which this Court can exercise jurisdiction under the present petition, the said petition is, therefore, dismissed, leaving the petitioner to obtain her interest in the real estate, or the accounting of the rents already received, in such other proceeding as may be appropriate.