It may be regarded in another aspect, equally pointing to the same result. If the devise had created an estate tail (supposing such an estate could at that date have been created in this State), and it had been limited in tail general to the daughter, with remainder in fee simple to the plaintiff, that estate in the event which has happened would have had the same duration as the fee given to her in this case. It would have terminated with her life, the issue in whom alone it could have continued having died before her. Yet, in that case, the husband's right to curtesy would have been clear beyond all question. It would seem not a little singular that the greater estate, the fee simple which this daughter took, either by descent or devise, should not avail to give her husband that which he unquestionably would have taken had her estate been of an inferior quality and less than a fee simple.
Again, leaving out of view all technical aspects of the case, and looking only to the general intention of the testatrix, it is obvious that she did not mean the plaintiff to take anything unless her two children should be dead, and should have left no children living. She knew that the son had no children, and was probably dead, but if he came back he and the daughter were each to have a half. If he did not return, the daughter was to have the whole, but if she died leaving no child, then, her descendants being extinct, the estate was to go to plaintiff. Her purpose was not to lower the quality of her daughter's estate or to deprive it of the ordinary incidents of estates in fee, but only to give it over when there should remain no longer any one to hold it representing her daughter.
The only remaining question is as to the effect of the married woman's acts of 1848 and 1849 upon the law in respect to curtesy. After sundry conflicting decisions, the law has become substantially settled, that while those acts excluded the husband during life from control of, or interference with, his wife's separate real and personal estate, and gave to her alone the power of disposition by deed or will, yet they left the husband the right of curtesy in her real property and of administration for his own benefit of her personalty, in so much as remained at her death undisposed of and unbequeathed Matter of Winne, 2 Lansing, 21; Ransom v. Nichols, 22 N. Y. 110; and Barnes v. Underwood, 47 Id. 351.
The judgment should be reversed, and judgment rendered for defendant on the verdict, with costs.
(4.) How Curtesy May Be Defeated.
(a.) Alienage of husband.
Putman, J., IN
20 Pickering (Mass.), 121, 124. - 1838.
It is found in the case, that Sarah, after the death of her husband Varney, married Antonio Crisp, the tenant, by whom she had one child, Antonio Crisp, Junior, now living: and that Antonio Crisp was an alien, a native of Spain, and that he made his primary declaration of an intent to become a citizen of the United States, in the lifetime of Sarah, his wife, and was in fact naturalized after her death.
And the question made for him is, whether or not he is entitled to hold the premises as a tenant thereof by the curtesy.
In the case of Wilbur v. Tobey, 16 Pick. 179, the Chief Justice, for the whole court, stated the law to be without doubt, "that an alien can take real estate, by deed or devise, or other act of purchase, but cannot hold against the commonwealth; he, therefore, takes a defeasible estate, good against all except the commonwealth, and good against them, until they institute proceedings, and obtain a judgment by inquest of office. But an alien cannot take by act of law, as descent, because the law will be deemed to do nothing in vain, and, therefore, it will not cast the descent upon one who cannot by law hold the estate."1
The doctrine laid down by the Chief Justice is maintained by all the books which treat of the subject. Indeed the counsel for the tenant does not deny the general doctrine of the common law touching alienage, but courageously contends that it has been repealed by our own statutes, and that the tenant is entitled to take and hold the premises demanded, as a tenant by the curtesy.
He contends that by the Revised Stat., c. 60, § 17, the tenant is clearly entitled. * * *
The answer is very apparent. The statutes of the commonwealth touching the descent of real estate, were intended to apply to citizens, and not to aliens, unless they were particularly named.
(b.) Forfeiture for alienation of fee. JACKSON ex dem.
2 Wendell (N. Y.), 357. - 1829. [Reported herein at p. 612.]
(c.) Annulment of marriage. Absolute divorce.
10 Connecticut, 225. - 1834.
Daggett, Ch. J. * * * Has the plaintiff a title to the land on which the supposed trespass was committed? It was conveyed to her, in 1808, while she was the lawful wife of William Wheeler, by whom she had issue, born alive, before and since the conveyance. His interest in this land by virtue of the coverture, was taken by execution, in favor of one Judah Ransom, who entered into possession and occupied until the 15th of June, 1832; when he sold it to the defendant, who has possessed it ever since. Subsequent to all these events, in August, 1832, she obtained, by a decree of the Superior Court, a divorce a vinculo matrimonii from her husband, William Wheeler. What is the operation of this decree of divorce upon the rights of the wife, and of the defendant, who holds by purchase from the execution creditors?
It was decided, by the unanimous opinion of this court, in Starr v. Pease et al., 8 Conn. Rep. 541, that the right of the husband in the land of his wife, being an estate during coverture, is terminated by a divorce a vinculo matrimonii and that the rights of creditors to the land dependent on coverture, were thereby affected and destroyed. On further reflection, I am satisfied with that decision. It must, then, control this case, unless a distinction can be sustained. The counsel for the plaintiff insist on this fact, that in the case of Starr v. Pease et al., it appeared, that Lewis, the husband, had no issue by the wife; and in this case, Wheeler, the husband, had issue, born alive, before and after she became seised of the land; and hence, they say, that he was tenant by the curtesy initiate. It has its origin, they insist, not simply in the marriage, but in the birth of issue. He may then charge the estate; make a feoffment; hold against the heir of the wife, after her death; against the remaindermen or reversioner; and even against the king, in the case of attainder. And again, his estate is not terminated, by abandoning the wife and living with another woman. For these several positions they cite Co. Litt. 30; 2 Black. Com. 127; 1 Rop. on H. and W. 15, 45, 48; 1 Swift's Dig. 84; Sidney v. Sidney, 3 P. Wins. 276, 7.