Kintz v. Long

The opinion of the court was delivered by Porter, J. — It is unnecessary to measure with accuracy the husband’s interest under this deed. Starting from the point to which the English decisions have brought the law, that a husband may have curtesy of a trust estate, of such a nature that the legal estate, if executed, would have entitled him to curtesy, or adopting the phraseology of our Pennsylvania cases, that the husband is tenant by the curtesy wherever the wife during the coverture is in possession of an equitable estate of inheritance, and conceding that the proviso of the 10th section of the Act of 11th April 1848 means that, if a husband survives a wife who dies intestate seised of an estate of inheritance, he shall be entitled to enjoy that estate during life as a tenant by the curtesy consummate at common law, the question arises, whether the estate of the husband, as tenant for life under the deed to the plaintiff, became vested in the defendant by the sheriff’s sale. This involves the construction of the Act of 24th January 1849. The Act of 13th October 1840 had provided for the sequestration of estates for life: 3 Barr 275; 1 Harris 488. The third section of the subsequent act authorizes a sale under the ordinary writ, where a sequestrator has not been [503] appointed. By the fourth section, the proceedings in the event of an election to retain the property are provided, and the exercise of the right is guarded. The provisoes of this section produce the only difficulty in construing the act. The third proviso declares that no such writ shall be issued unless by the direction of the proper court, and that, of the application of a creditor for a writ, the tenant for life shall have at least ten days’ notice. Does this requirement extend to the writ referred to in the third section, to be issued where the tenant has not requested an appraisement ? Or does it refer to the writ which the enacting clause of the fourth section has directed after the official ascertainment of the yearly value ? If the former, the natural place for the last proviso would have been at the end of the third section, and its present position is unfortunate. By restraining its effect to the proviso immediately preceding it, a greater obstacle is encountered. That proviso expressly forbids the writ where the annual rent is found to reach a certain sum, and by this construction it is forbidden by the last proviso, unless the court direct it to be issued. In other words, it is first forbidden altogether, and then an application to the court to issue it, is invited, if not enjoined. This spoils the whole. The other is the better reading. The writ mentioned in the third proviso, on this interpretation, is that authorized by the third section, and not the writ restricted by the proceedings directed in the enacting clause of the fourth. That is, any writ of venditioni exponas for the sale of a life estate, though applied for before the procurement of sequestration, can be issued only by the direction of the court, upon notice of such application to the tenant for life. So we decide. These proceedings were therefore bad from the start. The writ, so far as it struck at the life estate, was irregular and void. It passed no life estate whatever. Judgment affirmed.