Stoddard v. Gibbs

STORY. Circuit Justice. There is but a single question in this case, and that is, whether in Rhode Island a husband is entitled to a life estate, as tenant by the curtsey, of land of which his wife was in her lifetime seised in fee in reversion. If this question were to be decided by the common law, It would not admit of controversy. Nothing is better settled in that law, than that there can be no curtesy of a remainder or reversion. Mr. Justice Blaekstone, in his Commentaries (2 Bl. Comm. 127), lays it down as one of the elements of the common law. “There are (says he) four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of the wife. 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 a seisin in law, but an actual possession, which is a seisin in deed. And, therefore, a man shall not be tenant by the curtesy of a remainder or reversion.” And this language is fully' borne out by' Lord Coke, in his Commentary on Littleton. Co. Litt 29. Now, the common law was expressly adopted by a statute of Rhode Island as early as the year 1700, as the rule in all cases, w’here no particular colonial law existed on the subject. Lavs R. I. 1744, p. 28. Of course the common law must prevail, unless there is some statutory-provision, which has since that period intercepted or varied its application. Let us see, then, w-hether any such provision exists. By the statute of descents of Rhode Island (1798, 1822), it is enacted, that “w’hen a man and his w-ife shall be seised of any real estate in her right in fee. and issue shall be bom alive of the body of such wife, that may inherit the same, and such wife shall die, the husband shall have and hold such estate during his natural life, as tenant by the curtesy.” Laws R. I. 1822, p. 227, § 8. Now this description of a tenant by the curtesy is in substance the same, which Littleton (section 8."» has given of a tenant by the curtesy at the common law: “Tenant by the curtesy of England (says lie.) is where a man taketh a. wdfe seised in fee simple, or in fee tail. &t\, and hath issue by the same wife, male or female, born alive, albeit the issue after dietli or liveth. y'et if the wife dies, the husband shall hold the land during his life by the law of England." Now. my Lord Coke, commenting on this very passage, says, that the words, “seised in fee.” mean a seisin in deed, not a seisin in law; and therefore a man shall not be tenant by the curtesy of a bare right, title, use. or of a reversion or remainder expectant upon an estate of freehold, unless the particular estate be determined or ended during the coverture. Co. Litt. 29. See Cruise, Dig. pp. 159, 160, tit. 5, c. 1, § 1. So .that it is clear, that the words, “seised in fee," do not necessarily, in the language of the law, import a seisin in deed, that is, a present estate in fee in possession. Now, since the rule of the common law was not only well known, but had been adopted in Rhode Island, it would [129] be natural to expect, if the legislature intended to modify or repeal it, that some language would be used, which should unequivocally, and in terms susceptible of no doubt, express that intention. In such a case we should not expect to find the very language used, which the most accurate writers upon the common law were accustomed to use, to express the very rule of that law. Co. Litt. § 3; Cruise, Dig. pp. 159, 160, tit. 5, c. 1, § 1; Bac. Abr. tit. "Courtesy,” C, 2; Com. Dig. tit. “Estate,” D, 1; Dane, Abr. c. 130, art. 3, § 1; Buckworth v. Thirkell, 3 Bos. & P. 652, note. Would it be safe for any court to adopt an interpretation, abolishing the common law rule, upon so loose a foundation? The statute of Massachusetts respecting tenancy by the curtesy, is in precisely the same terms, as that of Bhode Island; and probably the latter was borrowed from the former. See Act March 9, 1784; St. 1783, c. 30. The uniform interpretation of the Massachusetts statute has been, that it does not vary the rule of the common law. Dane, Abr..e. 130, art. 3, §§ 1-3. This is strong evidence to show, what the fair interpretation of the terms is; or, at least, it shows, that the language reasonably admits of an interpretation consistent with the rule of the common law, and in affirmance of it. The language of the Bhode Island statute respecting dower, uses terms nearly the same. It declares, that the widow shall be endowed of one third part of the lands, <&c., “whereof her husband, or any other to his use, was seised of an estate of inheritance at any time during the coverture.” Laws R. I. 1822, p. 188. Yet, I presume, it • was never contended, that this applied to a seisin in law, such as a seisin of a reversion or a remainder. But it is said, that in the state of Connecticut the doctrine has been settled upon solemn argument, that actual seisin in the wife during the coverture, is not necessary to entitle the husband to a tenancy by the curtesy of her estate. That certainly was the doctrine of the majority of the court in Bush v. Bradley, 4 Day. 298, 305. and is probably now deemed the settled law of that state. Reeve, Dom. Rel. pp. 33-35. But it is observable, that the decision in that case was not founded upon any positive language of the legislature, directly applicable to the ease. There was no statute of Connecticut. which called for any interpretation by the court. -The doctrine was avowedly founded upon analogies furnished by the local law of the state. It was said, that the statute of limitations of Connecticut in its terms did not take away the title of the original proprietor, but only tolled his right of entry; and yet that it had always been construed to bar all claim of title; while the same words in the English statute had been considered as having no effect whatever upon the title, but only upon the right of entry. It was also said, that actual seisin was not necessary in cases of descents or devises; but that it was sufficient, that there was a right of property. And if not necessary in such cases, the question was asked, why should it be thought necessary to the husband's title by the cur-tesy? And the conclusion, to which the court arrived, was, that the English law respecting the efficacy of seisin had long since been departed from in Connecticut, and to adhere to it in the case of the curtesy would mar- the symmetry of the law of that state. Now, however satisfactory this reasoning was to the learned judges, who decided this case, it has not been deemed equally satisfactory to other learned judges in other states, where the local jurisprudence furnished, in whole or in part, similar analogies. They have held, that the common law rule must prevail, until altered by the legislature; and that they were not at liberty to imply such a repeal upon mere analogy. . This doctrine is, a, fortiori, to be followed in Bhode Island; for, the common law having been adopted by statute in that state, nothing short of a legislative repeal, either express or necessarily implied, could justify any court of justice, sitting in that state, in an abandonment of it. Now, I confess, that I see not the slightest reason for supposing, that the legislature, in the statute already cited, had the least intention to repeal the common law in regard to tenancy by the curtesy. The language of the statute is merely affirmative, leaving what is intended by the words, “seis-ed of any real estate,” &c., to be ascertained upon the sound rules of interpretation applied to similar eases. It is a general rule of construction, not to presume the common law repealed by a statute, unless the language naturally and necessarily leads to that con-elusion. Besides, though the language is not inconsistent with a larger intent, yet the subsequent words, “the husband shall have and hold such estate during his life,” more naturally apply to a present possessory estate. than to one. which may never fall into possession during his life. The Connecticut law, however, cannot apply to the present case; and indeed is repugnant to the statute of Bhode Island. By the decision alluded to, it is not necessary, that the wife should have any seisin, either in law or fact, of the estate. to give her husband an estate by the curtesy, In the very case decided, she was actually disseised at all times during the coverture; and yet her husband was held entitled, as tenant by the curtesy. Now. the statute of Bhode Island positively requires a seisin in the wife during the coverture. Nor, indeed, in another view, is the Connecticut decision in point. There the wife had a present estate. of which she was, though disseised, entitled to a present possession. No question arose as to curtesy of a reversion or remain d-er. How that question would have been decided, if it had arisen, this court have no means of ascertaining. I cannot agree with one remark of the counsel for the plaintiff in the present case, that Eliza Gibbs, the mother of the plaintiffs, was [130] uot seised in law of the estate, because she had only a reversion therein, after the tenancy of her father by the curtesy should expire. My opinion is, that there can, technically speaking, be a seisin in law of a reversion, though not in deed; and that such was her predicament. She was, in the strictest sense of the terms, seised of the reversion. See Cook v. Hammond [Case No. 3,159]; Plow. 191. Upon the whole my opinion is, that the plaintiffs upon the special verdict are entitled to recover their purparty, as heirs of their mother, Eliza Gibbs. The district judge concurs in this opinion, and judgment is to be given accordingly.