Moore v. Darby

The Chancellor. Miriam E. Moore has filed her petition in this court, praying for partition between her and her two brothers, Samuel W. Darby and John C. Darby, of lands situate in Mispillion and South Murderkill Hun — 198 — dreds, formerly belonging to Samuel Warren, senior. One of these tracts of land contains about 700 acres; one other contains something over 200 acres, and a third tract contains upwards of 180 acres. Samuel Warren, senior, died in 1848. By his will, admitted to probate November 6, 1848, he devised as follows: “ Fcmrth. I give and devise to my beloved wife, Miriam, for and during the term of her natural life, without impeachment of waste, all that farm or tract of land with the appurtenances situate in Mispillion Hundred, Kent County, and State of Delaware, being the Mansion Farm on which Solomon Townsend, senior, and Solomon Townsend, junior, lived and died, and now in the tenure of Abner Woofers, and containing six hundred acres more or less; and from and immediately after the death of my said wife, I give and devise the said farm or tract of land, with the appurtenances unto Solomon Townsend Warren and John W. Hall and their heirs for and during the natural life of my daughter Mary Darby, now the wife of John M. Darby, upon trust, to receive the rents and profits thereof and to pay the same to my said daughter Mary during her natural life, for her sole and separate use, notwithstanding her coverture, free from the debts, management, power, and control of her now husband the .said John M. Darby, or of any other husband by her hereafter to be taken, and the receipt of the said Mary alone from time to time to be a sufficient discharge and after the death of my said daughter, I give and devise the farm or tract of land aforesaid with the appurtenances unto the heirs of my said daughter Mary in fee simple absolute, clear and discharged from the trust aforesaid. “Fifth. I give and devise unto Solomon Townsend Warren and John W. Hall and their heirs for and during — 199 — the natural life of my daughter Mary Darby, now the wife of John M. Darby, the farm or tract of land which I purchased of Dr. Alexander Lowber near Frederica •containing five hundred acres more or less with the appurtenances upon trust, to receive the rents and profits thereof and to pay the same to my said daughter Mary ■during her natural life, for her sole and separate use, notwithstanding her coverture, free from the debts, management, power, or control of her now husband the said John M. Darby, or of any other husband by her hereafter to be taken, and- the receipt of the said Mary alone from time to time to be a sufficient discharge. And after the -death of my said daughter, I give and devise the farm •or tract of land aforesaid unto the heirs of my said daughter Mary in fee simple absolute, clear and discharged from the trust aforesaid.” The tract of land in Mispillion Hundred, as appears from the return of the freeholders, in fact contains about 700 acres of land and the two tracts in South Murderkill .Hundred contain, as appears by said report, something •over 400 acres. This discrepancy between the will of Samuel Warren, senior, and the report of the freeholders is not accounted for by any proof in the cause, but the •discrepancy is immaterial, as there is no doubt that the land mentioned in the will above recited and the land -of which partition is sought are the same. Thomas H. Moore has filed his petition, therein stating that he intermarried with the said Miriam E. Moore, the petitioner in the proceedings for partition on or about the 4th day of September, 1852, and had by her issue born •alive and thereby became tenant by the curtesy initiate of the lands of which she was seised for and during said •coverture, and that as said tenant by the curtesy initiate in the lands of his said wife, Miriam E., he has been informed and believes that he has an interest and is enti — 200 — tied to be made a party to said proceedings in chancery and he therefore prays that he as her husband may be-made a party thereto. He was made a party by the consent of the solicitors-for the plaintiff and defendants respectively. The freeholders appointed to make partition of the-lands have reported that the same cannot be divided, without detriment to the parties entitled and that they therefore have appraised the lands as by their commission they were commanded to do. The lands in respect to-which partition is prayed, have been sold, the proceeds, of sale paid into court, and the question is now raised by the solicitors for the husband of the petitioner whether her share of the proceeds of sale shall be paid to her absolutely, or, as they claim would be proper, shall be: ordered to be invested for her benefit, .the interest paid, to her for life and the principal held to secure the possible right of the husband therein should he survive the wife. ' An estate by the curtesy, says Cruise, quoting Little-ton, vol. 1, § 1, of chap. 1, title 5, p. 107, is where a man taketh a wife seised in fee simple or in fee tail general or seised as heir in special tail, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies the husband shall hold the land during his life by the law of England. And a tenant by the curtsey of England, says Blackstone, book 2, chap. 8, p. 126, is where a man marries a. woman seised of an estate of inheritance, that is, of lands and tenements in fee simple, or fee tail, and has by her issue, born alive, which was capable of inheriting her estate. In this case he shall on the death of his wife hold the lands for his life as tenant by the curtesy of England. There are four requisites, says Blackstone, necessary to make a tenancy by the curtesy: marriage,, seisin of the wife, issue, and death of the wife.' — 201 — 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin or possession of the lands; not a bare right to possess which is seisin in law, but an actual possession; and therefore a man shall not be tenant by the curtesy of a remainder or reversion. 3. The issue must be born alive. The husband, he-says, by the birth of the child becomes tenant by the curtesy initiate, and may do many acts to charge the lands, but his estate is not consummate till the death of the wife; which is the fourth and last requisite to make-a complete tenant by the curtesy. Miriam E. Moore had not the possession nor the right, to the possession of these lands or any part of them until the death of her mother, Mrs. Mary Darby. Her mother lierself had not the right to their possession in her lifetime, but the right to their possession during her lifetime was in Solomon Townsend Warren and John W. Hall and their heirs during her lifetime. The right to the possession of Miriam E. Moore to any portion of these lands did not accrue until the death of her mother,, Mrs. Darby, which occurred, as Mr. Moore states in his. petition, on or about the 27th day of January, 1888. At this period her children Miriam E. Moore, Samuel W. Darby and John C. Darby became entitled to the possession of the lands under the will of their grandfather Samuel Warren, senior.. Before that day and before Miriam E. Moore, and of course before her husband, Thomas H. Moore, could become entitled to any portion of said lands, the Legislature of Delaware lntd in effect abolished the right of a. tenant by the curtesy initiate in this State. In fact, tenancy by the curtesy of England .and tenancy by the curtesy as theretofore existing in Delaware ceased, to exist. — 202 — But to consider the law in reference to this subject independently of our Acts of Assembly, a man was not entitled to tenancy by the curtesy nor a woman to dower out' of a reversion or a remainder expectant upon an estate of freehold; but upon a reversion expectant upon •an estate for years both of these rights (of dower and of curtesy) accrue, for the possession of the tenant for years ■constitutes a legal seisin of the freehold in reversion. 1 Sharswood’s Bl. bk. 2, chap. 8, p. 126; Stoughton v. Leigh, 1 Taunt. 410; De Gray v. Richardson, 3 Atk. 470; Goodlittle v. Newman, 3 Wils. 521. The right the husband acquires by marriage in the lands of the wife is thus stated in vol; 2, p. 131, of Kent’s ■Commentaries, Lacy’s edition 1889: “If the wife, at the time of marriage, be seised of an estate of inheritance in land, the husband, upon the marriage, becomes seised ■of the freehold ju/re uxoris, and he takes the rents and profits during their joint lives. It is a freehold estate in the husband, since it must continue during their joint fives, and it may, by possibility, last during his fife. It will be an estate in him for the fife of the wife only, unless he be a tenant by the curtesy. It will be an estate in him for his own fife, if he dies before his wife, and in that event she takes the estate again in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeed to the estate. If there has been a child of the marriage born alive, the liusband takes the estate absolutely for fife, as tenant by the curtesy, and on his death the estate goes to the wife, ■or her heirs, and in all these cases the emblements growing upon the land at the termination of the husband’s estate go to him or his representatives.” If during her fife real estate is converted by operation ■of law into personal estate the conversion will be treated as her own. Graham v. Dickinson, 3 Barb. Ch. 170, 5 L. ed. 861. — 203 — The rents, issues, and profits of the wife’s lands accruing during coverture belong absolutely at common law to the husband. How effectually these common-law rights of the' husband had been changed by the statutes of this State will appear by reference to those statutes, and here I will remark that these statutes are remedial in character and must be construed by courts so as to effectuate the intention of the Legislature so far as the .same can reasonably and properly be done. Our first Statute upon this subject was passed March 17, 1865, and provided “that the real estate, mortgages, stocks, and silver plate belonging to any married woman at the time of her marriage, or to which she may become entitled at any time during her coverture, shall remain and continue to be her sole and separate property, and shall not be subject to the disposition of her husband by alienation, transfer, assignment, or otherwise; or be liable to the debts or contracts of her husband, except where such debts are judgments recovered against him for her liabilities before marrrage; provided, that nothing in this section shall be construed to authorize the wife to sell or otherwise dispose of her real estate, mortgages, stocks, or silver plate without her husband’s consent, evidenced by writing under his hand and seal, or to authorize her to create any incumbi’ance upon her real estate, or to dispose of the rents, issues, and profits thereof, or the interest 22pon her mortgages, or dividends, or other income arising from her stocks, without his consent, evidenced in the same manner: and, provided, further, that nothing herein contained shall be construed to affect, in any manner-, the rights of the husband (if he survive the wife), as tenant by the curtesy in the real estate of his wife.” The Act to secure to manied women certain of their own earnings, p. 95, vol. 14, has no relation to the case before the court. — 204 — By an Act for the protection of married women, passed. April 9, 1873, vol. 14, p. 638, § 1, it was provided “that, the real and personal property of any female who may hereafter marry, and which she shall own at the time of her marriage, or that any female now married may receive by gift, grant, devise, or bequest from any person other than her husband, shall be her sole and separate property, and the rents, issues, and profits thereof shall not be subject to the disposal of her husband nor liable for his debts.” This last Act was amended March 17, 1875, by striking out said first section and inserting among other things, in lieu thereof: “Section 1. That the real and personal property of any married woman, which has been heretofore acquired, is now held, or which she may hereafter acquire in any manner whatsoever, from any person other than her husband, shall be her sole and separate property, and the rents, issues, and profits thereof sliall not be subject to the disposal of her husband, npr liable- • for his debts.” These are the portions of our Acts properly known as Married Women’s Acts having relation to the question now before me. Regarded as remedial, and construed so as to advance the remedy and effect the object intended to be accomplished by the Legislature, what are their effects in the case before me ? Mrs. Miriam E. Moore was not entitled to the possession of these lands or any portion of them until the 27th day of January, 1888, the day of the death of Mrs; Darby, and the day on which the estates of Solomon Townsend Warren and John W. Hall, trustees thereof, expired. Thomas H. Moore had not then and has not since had any estate and no interest in said lands. He has not had the legal right to enter upon or into the possession of said lands for any purpose whatever; he is not entitled — 205 — to the perception of the rents and profits of said lands •or any part thereof during the lifetime of his wife; he lias no estate by the curtesy initiate therein; he is entitled only to the possibility of entering into the possession of his wife’s interest therein and enjoying the possession thereof during his lifetime in case he survives his wife, and in case no partition thereof be made between the tenants, in common thereof, and unless the conversion of the wife’s interest therein into money be in fact and in law not an absolute conversion, but a qualified conversion only. Would such a conversion of land into money under these circumstances have the effect of securing to 'Thomas H. Moore the preservation and enjoyment of the principal sum of money adjudged as the value of the wife’s interest in the lands under the proceedings in partition in this cause? The doctrine of conversion was thus stated by an eminent English equity judge in a leading case upon this .subject: “Nothing is better settled than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, -are to be considered as that species of property into which they are directed to be converted, and this, in whatever mariner the direction is given, whether by will, by way of contract, marriage articles, settlement, or otherwise; and whether the money is actually deposited, or ■only covenanted to be paid. Whether the land is actually conveyed, or only agreed to be conveyed, the owner of the fund, or the contracting parties, may make land money, or money land. The cases establish this rule universally.” See 1 Pom. Eq. Jur. § 161, and authorities cited. The principle properly applicable to this case was decided by the superior court at its fall session in 1874 in the case of State, for the use of Samuel D. Coverdale, versus Randall B. Gorman and others. — 206 — The court decided in that case that under the Act for Married Women, passed in 1865, a wife’s interest in a recognizance in the orphan’s court on the assignment of the real estate of a deceased father cannot be attached for the debts of her husband, except for such as are properly provided for in it. In that case the court said: They considered that it would be contrary to the spirit and policy as well as the intention of the Statute of 1865, for the benefit of married women, to now hold that a wife’s sole and separate interest in the real estate of her deceased father secured by recognizance in the orphan’s court may be attached for the debt of her husband except such debts as are specially provided for in it. Jefferson v. Brady, 4 Houst. (Del.) 626. If I understood the argument of the solicitors for Thomas H. Moore, the husband of Miriam E. Moore, it was that the conversion of the interests of Mrs. Moore and her brothers by a decree of a court of chancery of the real estate belonging to them in common was not a conversion out and out, but a special conversion for the purposes of partition only; and that the share of Mrs. Moore in the amount of the sales of the lands made under the order of the court in this partition cause should not be ordered paid to her absolutely, but that she should be required to give security for her proportion of such sale, so that in case her husband should survive her that amount should be secured so that her husband, in case he should survive her, might have the enjoyment of it during his life as tenant by the curtesy therein. The position of the counsel for Mr. Moore is not in my opinion tenable. It is not supported by a proper consideration of our Acts of Assembly in reference to the estates of married women, or of the doctrine of conversion as supported by adjudged cases. — 207 — Partition of estates held in common is a necessary incident of such estates. Where such estates cannot in fact be divided between tenants in common the law requires that they shall be valued in money, and that such valuation shall be returned to this court by the freeholders appointed to make partition or valuation. Such valuation being returned to-the court, its duty is to decree a sale by a trustee to be appointed for that purpose, the trustee making sale under the authority of his appointment for that purpose. It is the duty of the court to decree the payment to each tenant in common subject only to costs and liens against them respectively. Mo decision contrary to the principles here announced has been made by me since I have exercised the duties of chancellor, and none, I presume, have been made to-the contrary, by any of my predecessors in office when their attention has been properly called to the provisions of our Acts of Assembly in respect to the rights of married women. Let a decree be drawn for the payment to Mrs. Moore of her share of the proceeds of sale of the lands held in common by her and her brothers.