Cochran against O'Hern, 4 Watts & Serg. 95

The opinion of the Court was delivered by Rogers, J. — The positions taken as to the construction of the will have not been impugned, nor could the attempt be made with the least prospect of success: we therefore assent to that part of the case, for the reason given by the learned judge of the District Court. The argument here is only as to the effect of the deed of the 6th of November 1821.

The point is new in this State, and does not seem to have been taken in the court below, and brings up the question, whether a husband is tenant by the curtesy of real estate conveyed to a trustee for the sole and separate use of a wife in fee. As a general proposition, it is conceded that a husband may be tenant of a trust, even if executory in the wife; for the husband becomes such whenever the wife, during the coverture, is in possession of an equitable estate of inheritance, and has issue by the husband capable of that inheritance.

Here the wife has an equitable estate of inheritance, and if there was nothing else in the case, there is every requisite to constitute the husband tenant by the curtesy. The property, however, is conveyed to a trustee for her sole and separate use in fee; and in Hearle v. Greenbank, reported in 1 Vez. 298, and in 3 Atk. 716, the point is ruled against the right of the husband. Lord Hardwicke in giving the judgment, puts it on two grounds, want of seisin in the wife, or rather in the husband, and on the intention of the devisor.

He observes, that to make the husband tenant by the curtesy, the wife must have the inheritance, and there must be likewise a seisin in deed in the wife during coverture. It was true she had the inheritance, but then the father, whose estate it was, has made the daughter a feme sole, and has given the profits to her separate use; therefore, what seisin he asks could the husband have during the coverture 1 he could neither come at the possession nor the profits. In Morgan v. Morgan, (5 Mad. C. 245), the authority of Hearle v.

Greenbank, if not overruled, is shaken as to the first ground taken by Lord Hardwicke, as to the seisin. It is said to be contrary to Roberts v. Dixwell, (1 Atk. 606), where the same judge said that a devise to her separate use would not bar the husband, because there was a sort of seisin in the wife; and to Pitt v. Jackson, (2 Bro. Ch. 51), where it seems to have been held that the receipt of the rents and profits is a sufficient seisin in the wife; or to D’Grey v. Richardson, (3 Atk. 469), where it would appear as if no seisin in the wife is necessary to entitle the husband to be tenant by the curtesy.

It may be observed that Roberts v. Dixwell is but a dictum, whereas in Hearle v. Greenbank the point is expressly ruled, and in the latter case it is put not on the seisin of the wife but of the husband; for what seisin could the husband have, as the court say, during the coverture, when he could come at neither the possession nor the profits, for a husband cannot be tenant by the curtesy, unless he can show seisin in himself in right of his wife. According to Lord Coke, Co.

Lit. 30, a, to make a tenant by the curtesy, there ought to be a right in the husband initiate in the life of the wife, which cannot be where she receives the rents and profits during coverture, and which he has no right to control. But admitting the technical reason to be unsound, what becomes of the other reason, that it is contrary to the intention of the testator that the husband should be tenant by the curtesy. The Vice Chancellor, in Morgan v.

Morgan, evades this ground, and puts the case upon the fact that no such intention is evinced, because the rents and profits are given to her for life, and therefore the husband is partially, but not wholly, excluded from the enjoyment of his wife’s property. Without examining the propriety of this distinction, the force of which I do not feel, yet, it may be sufficient to observe that it does not apply, because here it is given to the wife in fee-simple, manifesting most clearly that the intention was to exclude the husband from any interest whatever in the estate.

But be this as it may, it is conceded on all hands in Morgan v. Morgan, and in Bennet v. Davis, (2 Pr. Will. 316), that where lands are devised to the wife for her separate and exclusive use, with a clear and distinct expression that the husband is not to have a life estate or other interest, but the same to be for the wife and her heirs, a Court of Chancery will bar the husband of his curtesy. Taking the intention as the rule, here there are strong words of exclusion.

It is given to her sole, separate and peculiar use, benefit and disposal, in fee-simple, and it is ordered that no one part of the premises shall be in anywise subject or liable to the disposal, intermeddling, control, engagements, debts or encumbrances of the husband, his creditors or any of them. And that nothing, either in law or equity, shall be taken or construed to vest any title, claim or challenge whatever in the husband, or any person or persons claiming under him, in the same premises, or any part thereof.

It is therefore apparent it was intended by the parties to exclude the husband from any interest whatever in the premises; and it would contravene the intention of the parties to the deed to hold that he has notwithstanding a life estate. It has been suggested that by force of the word disposal the wife has the power to sell, and by consequence to mortgage the premises, the greater including the less. But this word does not refer to the corpus of the grant, but to the rents, issues and profits which she has the right to use or dispose of as a feme sole.

In this State a feme covert is, in respect to the separate estate, deemed a feme sole only to the extent of the power clearly given by the instrument by which the estate is settled, and has no right of disposition beyond it. Lancaster v. Dolan, (1 Rawle 247.) Judgment affirmed.