Martin v. Swanton

*11 Carpenter, J. “ The husband of any person deceased, holding property in her own right, shall be entitled to his estate by the curtesy in all lands and tenements owned by her, when he would be entitled to hold as tenant by the curtesy at common law.” G. L., c. 202, s. 14. “ The husband of any person deceased, testate or intestate, leaving any child by him, or the issue of any child by him, surviving her, by waiving the provisions of the will, if any, in his favor, and releasing his estate by the curtesy, shall be entitled, in fee, to one third part of all her real estate remaining after the payment of debts and expenses of administration ; if she shall not leave surviving her any child by him, or the issue of any child by him, and he has no estate by the curtesy, he shall be entitled during life to one third part of all the real estate of which she died seized; but if she shall not leave surviving her any child, or the issue of any child, he shall be entitled, in fee, to one half of all her real estate remaining after payment of debts and expenses of administration.” G. L., c. 202, s. 16. Section 15 provides that the husband shall be entitled to a portion of his deceased wife’s personal property. Upon his wife’s decease, Lewis Linscott took in fee one half the land in question under the last clause of section 16, unless it is repealed by the act of July 18, 1879, which provides that “the husband of any person deceased, in case she dies intestate, or if she dies testate and no provision is made for him in her will, shall not be entitled to her estate by the curtesy in any lands and tenement owned by said deceased, nor to any portion of her personal property remaining after the payment of her debts, if he shall have willingly abandoned and absented himself from the deceased, or wilfully neglected to support and maintain her, or shall not have been heard from, in consequence of his own neglect, for the term of three years next preceding her death.” Laws of 1879, c. 37. The act relates solely to the husband’s estate by the curtesy, and to his rights in the personal property of his deceased wife. It is not necessary to consider what effect, if any, it may have upon the first and second clauses of section 16. The plaintiff claims under the last clause, by which the husband is entitled to one half of all his deceased wife’s real estate, after payment of debts and expenses of administration. This right is not affected by the enactment depriving him of his estate by the curtesy. Whether in addition to one half of the real estate in fee the husband might in the absence of the act of 1879 be entitled to his estate by the curtesy, is a question which does not arise. The legislature may have seen satisfactory reasons for taking away from the deserting husband his estate by the curtesy, and rights to personal property, without at the same time depriving him of the rights conferred by section 16 in the realty of his deceased wife. However this may be, the language of the act is explicit. The legislative will as expressed cannot be disregarded. Weeks v. *12 Waldron, 64 N. H. 150. The words “by the curtesy” cannot be ■stricken out and “any” substituted for “her,” as the defendant in substance contends, making the act read “the husband . . . ■shall not be entitled to any estate in any lands,” etc. To do so would be not construing but making the statute. Judgment for the plaintiff Smith, J., did not sit: the others concurred.