Opinion
07-30-1895
EXTON v. HUTCHINSON et al.
James Buchanan, for complainant. B. B. Hutchinson, for exceptant. G. D. W. Vroom and Win. M. Lanning, for defendants.
(Syllabus by the Court)
Bill for partition and accounting by Sara Exton against Robert C. Hutchinson and others. Heard on exceptions to master's report, made in pursuance of an order to settle the rights and interests of the legatees and devisees under the will of Adam Exton, deceased. Exceptions sustained.
James Buchanan, for complainant. B. B. Hutchinson, for exceptant.
G. D. W. Vroom and Win. M. Lanning, for defendants.
BIRD, V. C. The questions presented arise on exceptions to master's report made in pursuance of an order upon a bill filed to ascertain and settle the rights and interests of legatees and devisees under the last will of Adam Exton, deceased, who, at the time of his death, was possessed of a large amount of real and personal estate. By the sixth clause of his will he gave to his wife all his interests in his real and personal estate, which he was entitled to in a certain copartnership, and all other his real and personal estate, in trust, securing to his wife an income of $3,000, and enough to preserve the estate in proper condition, and, to divide the balance of the income between his children, with power to withhold any share, and to pay the same according to her judgment, with power to sell or mortgage any of the real estate, or to sell any of his personal estate, excepting only certain stock. "The proceeds of such sales might be by her reinvested in any good and sufficient form, or she might be at liberty to divide the said proceeds, or any portion thereof, among my said children, share and share alike, the issue of any deceased child taking, collectively, the share of such parent." The seventh and controlling clause is as follows: "Whatever of said property may remain at the death of my said wife, of real or personal, or of principal, or of interest, or of both, undistributed or unsold by her, shall be divided between my said six daughters, share and share alike, the issue of any deceased child taking, collectively, the share of the parent." Adam Exton, the testator, died on the 17th day of August, 1887, leaving: six children him surviving. Eleanor Hutchinson, one of said children, died on the 6th day of October, 1888, leaving her husband and one child (Ida) her surviving. Elizabeth, the widow, died on the 22d day of March, 1801. The master reports that the five surviving daughters are each entitled to the equal undivided one-sixth part of the whole of said estate, and that "Robert C. Hutchinson, administrator of Eleanor E. Hutchinson, is entitled to one equal undivided sixth part of said personal property, and said Ida E. Hutchinson is seised in fee of one equal undivided sixth of the said real estate, subject to the said right of curtesy of the said Robert C. Hutchinson therein. The said defendant Robert C. Hutchinson is entitled to his curtesy in the said equal undivided sixth part of said real estate, of which the said Ida E. Hutchinson is seised as aforesaid." The said Robert Hutchinson, who is administrator of the said Eleanor, was her husband.
I think that Robert C. Hutchinson is not entitled to any of the personal estate, as administrator or otherwise, nor to any interest in the real estate, as tenant by the curtesy.
First, as to the personal estate: The title to this is given absolutely to the widow, as trustee, during her lifetime, except only so much of the income as may be in excess of $3,000, which excess she may distribute among the six daughters of the testator, or in case of the death of any daughter, leaving children, such children, collectively, take the parent's share. Nothing whatever of the principal of this personal estate is in any manner given to the children of the testator during the lifetime of his widow, who is trustee. Therefore, at the death of Mrs. Hutchinson she had no right or title whatsoever in any of the principal of her father's personal estate. No part of this could her husband, either as next of kin or as administrator, possibly lay claim to before the death of the widow, who held the title by express directions. At the death of the trustees came also the period of the distribution of the estate according to law. Each child then living was entitled to an equal share of the personal estate, and in case of the death of any, leaving children, such children were entitled, collectively, to the share the parent would have taken if living. Here, then, at the period of distribution, express provision is made for the persons who are to take. In case of the death of any child, leaving children, such children are substituted in the place of the parent. I think this case is clearly governed by that of Crane v. Bolles, 49 N. J. Eq. 378, 24 Atl. 237; Dawson v. Schaeffer (N. J. Ch.) 30 Atl. 91, affirmed at the last term of thecourt of errors, 33 Atl. —; Wood v. Bullard (Mass.) 25 N. E. 67. This being so, the exceptions to the master's report should be sustained.
The qualifications or conditions of the wife's interest in lands necessary to give rise to a tenancy by the curtesy are not presented in this case. Bouv. Law Dict p. 478, says: "An estate by the curtesy is an estate for life, created by act of law, which is defined as follows: When a man marries a woman seised at any time during the coverture of an estate of inheritance, in severalty, in coparcenary, or in common, and has issue by her, born alive, and which might by possibility inherit the same estate, as heir to the wife, and the wife dies in the lifetime of the husband, he holds the lands during his life, by the curtesy of England." 4 Kent, Comm. 27. The second condition in this definition is that of seisin. The wife must be seised of an estate of inheritance. According to the English rule, it must be a seisin in deed. I understand the rule in this country to be that the husband is entitled to his curtesy in lands in which the wife at any time had the right of immediate possession, as in case the wife is entitled to a remainder in fee, and the tenant for life should die on the 1st day of the month, the wife, dying immediately thereafter, her seisin would be such as to enable the surviving husband to claim curtesy, either a cotenant or lessee being in actual possession. Kent says that the law vests the estate in the husband immediately upon the death of the wife without entry. 4 Kent, Comm. star page 29; 1 Washb. Real Prop. (4th Ed.) 174. In this case the title to the real estate, as well as to the personal, was absolutely vested in the trustee during her life. It is very clear that no title whatsoever vested in any of the children of the testator during the lifetime of the trustee. The trustee not only had the power of selling and giving title, but the title itself. It is true, it may be said that each child had a contingent interest, dependent wholly upon surviving the tenant for life in case the tenant for life did not, under the power to sell, execute such power. Hence the enjoyment of seisin of the fee was dependent upon the children surviving the tenant for life, and also upon the failure of the tenant for life executing the power to sell committed to her.
This condition of survivorship necessary to the seisin of the fee, contemplated by the law, did not arise in the case of Mrs. Hutchinson, she having died previous to the death of the tenant for life. No estate of inheritance having come to her, she never was seised of any right of possession of any estate whatsoever, either legal or equitable. Consequently, she comes not within any definition providing for the right of tenancy by the curtesy. 2 Bl. Comm. 126, 127; Co. Litt. 29b; 8 Coke, 34. In 2 Bac. Abr. (Johnson's Ed. 1868) p. 13, the principle is thus plainly expressed: "The estate and seisin of the wife ought to begin some time during the coverture. So the words of the law import" It was expressly decided in Sumner v. Partridge, 2 Atk. 47, that: "Tenancy by the curtesy must come out of the inheritance, and not out of the freehold. A tenancy by the curtesy is a continuation of the inheritance in the husband. There can be no tenancy by the curtesy where the children take by virtue of a remainder over, and not by descent from their mother. To entitle the husband to be tenant by the curtesy, the inheritance must descend upon the children." In Barker v. Barker, 2 Sim 250, it was decided: "A devise to A. and her heirs, but if she died, leaving issue, then to such issue and their heirs. A. died, leaving issue. Held, that her husband was not entitled to be tenant by the curtesy." In Stead v. Platt, 18 Beav. 50, it was decided that: "There is no estate by the curtesy issuing out of an estate pur autre vie. The seisin of the wife must be an actual seisin or possession of the lands; not a bare right to possession, which is a seisin in law, but an actual possession, which is a seisin in deed. And therefore a man shall not be I tenant by the curtesy of a remainder or reversion." 2 Bl. Comm. 127; Gibbins v. Eyden,
L. R. 7 Eq. 371, 38 L. J. Ch. 377. In considering this question in the case of Hearle v. Greenbank, 3 Atk. 695, 716, Lord Chancellor Hard wick said: "But, considering what is necessary to make a tenant by the curtesy, the wife must have the inheritance, and there must be likewise a seisin in deed in the wife during coverture." As to this seisin in deed referred to in the English law, I should think it should be observed that the rule laid down by Chancellor Kent, as above quoted, is to be regarded as controlling in this country. Kent (4 Comm. 29) says: "The wife, according to the English law, must have been seised in fact and in deed, and not merely of a seisin in law of an estate of inheritance, to entitle the husband to his curtesy. The possession of the lessee for years is the possession of the wife, as reversioner; but if there be an outstanding estate for life the husband cannot be tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during the coverture. This is still the general rule at law, though in equity the letter of it has been relaxed by a free and liberal construction. The circumstances of this country have justly required some qualifications of the strict letter of the rule relative to a seisin in fact by the wife; and if she be owner of waste, uncultivated land, not held adversely, she is deemed seised in fact, so as to entitle her husband to his right of curtesy." 1 Washb. Real Prop. (4th Ed.) 162, 165, 173. This view sustains the further exceptions I will advise accordingly, with costs.