Opinion
11-03-1930
WALKER et al. v. BENNETT et al.
Karkus & Karkus, of Perth Amboy, for complainants. Edward P. Stout, of Jersey City, for defendant Henry (Hendrick) L. Bennett.
Syllabus by the Court.
Partition of land cannot be decreed in a case where the land is in possession of a tenant by the curtesy, without the consent of such tenant.
Syllabus by the Court.
An inchoate right of curtesy which vested prior to the enactment of chapter 71, P. L. 1927, p. 128, is not affected either by that act or the amendment thereto, chapter 209, P. L. 1928, p. 380.
Syllabus by the Court.
An inchoate right of curtesy is a vested interest in land, and not subject to impairment by legislative enactment.
Suit by Ella Bennett Walker and husband against Henry (Hendrick) L. Bennett and others.
Decree dismissing the bill advised.
Karkus & Karkus, of Perth Amboy, for complainants.
Edward P. Stout, of Jersey City, for defendant Henry (Hendrick) L. Bennett.
BERRY, Vice Chancellor.
Two questions are presented for decision in this partition suit: First, whether or not partition of land can be decreed by this court where the land is in possession of a tenant by the curtesy without the consent of such tenant; and, second, conceding that such consent was formerly required, whether or not it is now necessary, in view of the provisions of chapter 71, P. L. 1927, p. 128, as amended by chapter 209, P. L. 1928, p. 380.
The first question was answered in the negative, and adversely to the contention of the complainant, by the Court of Errors and Appeals in Portnow v. Portnow, 90 N. J. Eq. 570, 107 A. 148.
The second question must be answered in the affirmative.
The lands involved in this suit were owned in fee by Minnie W. Bennett, the wife of Henry (Hendrick) L. Bennett, at the time of her death on July 2, 1929. She acquired title to those lands prior to the enactment of chapter 71, P. L. 1927, p. 128. There was also issue born alive to this husband and wife prior to that date. The husband thereupon became entitled to an inchoate right of curtesy in these lands. Doremus v. Paterson, 69 N. J. Eq. 188, 57 A. 548, affirmed Id., 69 N. J. Eq. 775, 61 A. 396; Hackensack Trust Company v. Tracy, 86 N. J. Eq. 301, 99 A. 846; Mullen v. Mullen, 98 N. J. Eq. 90, 129 A. 749; Reese v. Stires, 87 N. J. Eq. 32, 103 A. 679;Bucci v. Popovich, 93 N. J. Eq. 511, 116 A. 923. For the purposes of this case it may be considered that there is a complete analogy between an inchoate right of curtesy and an inchoate right of dower. An inchoate right of dower is a valuable interest in land. Wheeler v. Kirtland, 27 N. J. Eq. 534. It is such a vested interest as cannot be impaired by legislative enactment. In re Alexander, 53 N. J. Eq. 96, 30 A. 817. An inchoate right of curtesy is also a vested interest in land with practically the same incidental rights, and subject to like defeasance, as inchoate dower. The constitutional inhibition against arbitrary legislative enactment impairing the inchoate right of dower applies with equal force to inchoate rights of curtesy. Hackensack Trust Company v. Tracy, supra; Weaver v. Patterson, 92 N. J. Eq. 170, 111 A. 506.
It is true that in Murphy v. Skelly, 100 N. J. Eq. 193, at page 195, 135 A. 351, Vice Chanceller Bentley said that an inchoate right of curtesy might be abolished by the Legislature at will without infringing on the rights of the husband entitled to such an estate. As authority for this statement Vice Chancellor Bentley cited Allen v. Hanks, 136 U. S. 300, 10 S. Ct. 961, 964, 34 L. Ed. 414; but the point contended for by the complainant here was not involved either in Murphy v. Skelly or Allen v. Hanks. What the United States Supreme Court said in Allen v. Hanks, supra, was "that it is competent for the state, in its fundamental law or by statute, to provide that all property thereafter acquired by or coming to a married woman shall constitute her separate estate. ***is***a proposition too clear to require argument, or the citation of authorities, to support it." (Italics mine.) Undoubtedly the inchoate right of curtesy in property acquired by the wife subsequent to legislative enactment abolishing such rights was what Vice Chancellor Bentley had in mind. It needs no citation of authorities to support that proposition. The decree advised by Vice Chancellor Bentley in Murphy v. Skelly was affirmed by the Court of Errors and Appeals in 101 N. J. Eq. 793, 138 A. 882, but the opinion of that court did not touch upon the point here involved.
I will advise a decree dismissing the bill.