Summary
In Middleton v. Steward, 47 N.J. Eq. 293, in which state there was a statute similar to sec. 12, supra, the court held that the husband must execute a conveyance to bring about such a result.
Summary of this case from Osborn v. Worcester County Tr. Co.Opinion
03-20-1889
STEWARD et al. v. MIDDLETON et al.
T. C. French, for complainants. J. F. Harned, for defendants.
Bill by Steward et al. against Middleton et al. to restrain certain attachment proceedings.
T. C. French, for complainants. J. F. Harned, for defendants.
BIRD, V. C. An injunction is asked to restrain a creditor in an attachment proceeding from making his money out of the real estate in which the defendants say he has an interest as tenant by the curtesy, but in which the complainants say that Steward has only such interest as was devised to him by the last will of his wife. The complainants insist that Steward has no legal interest in the land attached, but only an equitable, and that the legal title is in the other complainants, and that, if the attachment is allowed to be consummated, a cloud on the title will thereby be created which will greatly impair the value of the lands. The wife of Steward made her will, in and by which she devised to B. and J. Kain, two of the complainants, and to the survivor of them, a house and lot, in trust, that they or the survivor of them should permit her husband, one of the said complainants, to occupy said house and lot during his life-time, he paying the taxes and other municipal charges, and the interest on a $500 mortgage thereon, and keeping the premises in repair; but; in case he should prefer not to occupy said house and lot, then the said trustees were to hold the same in trust, and rent the same, and after paying said charges, and keeping said premises in repair, were directed to pay the remainder of the interest to the said complainant during his life. The said trustees were authorized to sell the said lot, and to invest the proceeds, and to apply the interest to the benefit of the said Steward; and after the death of Steward, the lot, if unsold, and the proceeds, if sold, she gave to her daughter. Steward indorsed on said will his consent thereto, under his hand and seal. As intimated, the attaching creditor levied upon Steward's interest in the land. Steward entered an appearance for the purpose of moving to quash the writ, but Mr. Justice PARKER refused the motion, upon the ground that the wife could not dispose of any interest that her husband might have in her lands by law after her death. The trustees named in the will were not made parties to the attachment proceedings, and consequently were not in court before the circuit judge. The resistance to this application for an injunction is twofold: (1) It is said that the matter is res adjudicata; (2) and that if this court has jurisdiction, then the wife had no power, under the law, by will, to dispose of any interest which her husband might have in her land, such as he had in this case, having had issue by her, born alive, in lawful wedlock, and surviving her.
1. Since the trustees were not parties to the attachment proceedings, and since they have an interest in the land given to them by the will, supposing it to be nothing but a power to sell, it cannot be said that the matter in dispute has been once heard and determined as to them.
2. The important question is, since by the statute a married woman can make a will disposing of her real estate, can she, with her husband's written consent thereto, dispose of his right as tenant by the curtesy therein? The statute (Revision, p. 638, § 9) which authorizes a married woman to make a will disposing of any real or personal property expressly provides that nothing therein contained shall be so construed as to authorize any married woman to dispose, by will, of any interest or estate in real property to which her husband would be at death entitled by law, but declares that such interest or estate shall remain and vest in the husband the same as if such will had not been made. On the motion to quash in the circuit court, Mr. Justice PARKER decided that the force of the statutory provisions were not overcome by the consent of the husband, under his hand and seal, that the wife should make such disposition of her real estate. He said: "It matters not that the husband assented to the will. It matters not that the will purported to give to the defendant substantially the same interest in the land that he took as tenant by the curtesy. The statute by virtue of which a married woman can make a valid will to pass real estate expressly forbids the right her husband would" take at her death from passing by will, and it remains as if the will had not been made." Middleton v. Steward, 9 N. J. Law J. 174. It would be my plain duty to follow this decision were it not for the case of Beals v. Storm, 26 N. J. Eq. 372, by which it appears that in Vice-Chancellor VAN FLEET'S opinion, the husband consenting thereto, the wife could make a valid disposition, by will, of lands in which he had an interest at her death. It is to be observed, however, that at the time of rendering his opinion in that case both the husband and wife were dead, and the question as to the effect of such a disposition so consented to was no longer of any importance. He observed, however, that the will was made with the consent of her husband, and duly admitted to probate. He added: "Before the passage of the act of 1864, a married woman could, with the consent of her husband, make a valid will of her personal property. Emery v. Neighbour, 7 N. J. Law, 142; Van Winkle v. Schoonmaker, 15 N. J. Eq. 384. The act of 1864 removed the disability of married women to make wills, but at the same time saved the rights of their husbands in their estates. Under itthe will of a married woman is valid without her husband's assent, except as to his legal rights in her property. With his assent it is absolutely valid. In the present case, the property devised and bequeathed was property over which her husband, in her life-time, had no control, and which his creditors could not have reached for the payment of his debts. * * * His assent to her will was an effectual waiver of his claim to her property after her decease, a renunciation of his reserved rights, and is conclusive, not only against him, but against his creditors also. Silsby v. Bullock, 10 Allen, 94." I think there can be no doubt but that it is my duty to accept and follow such a clear and explicit declaration of the law by the chancellor. It may be added that in Wagener v. Ellis, 7 Pa. St. 411, the court held that the rule that the husband may consent to the wife making a testamentary disposition of her personal estate, because be is regarded in the law as her next of kin, and takes all at her death, when she dies intestate, applies to real estate when, under the law, he is entitled to the fee at her death. And I think that a careful study of the eleventh chapter of Reeve's Domestic Relations will satisfy the inquirer that the foundation of the rule requiring the consent of the husband to the wife's disposing of her personal property by will is that her property all became his at her death, if not before, upon his reduction of it to possession. In the case now before me, as in the case of Wagener v. Ellis, supra, the will effects no change in the rights of any one who can claim under the wife except the husband. I will advise a decree in accordance with these views, with costs.