
    Francis B. Denny et al. v. Levin T. McCabe.
    1. The provision in section 17 of the act of March 14, 1853, regulating descents and distribution of estates (S.& O. 504), that “nothing in this act shall be so construed as to effect the right which any person may have to an estate by the curtesy or in dower in any estate of any deceased persons; and surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estates of their deceased wives by the curtesy,” does not affect or modify the rights or interests of a husband in the lands of his wife during the lifetime of the wife. '
    2. By the same section as amended March 1, 1869 (66 Ohio Laws, 21), a surviving husband, without issue born during coverture, is not entitled to-courtesy in the lands of his deceased wife, as against her issues or their legal representatives by a former husband, unless such lands were acquired by deed of gift from the surviving husband or by devise or deed of gift from his ancestors.
    Error. Reserved by the District Court of Preble county.
    Tlie original action was commenced in the court of common pleas by plaintiffs in error against defendant in error to recover the possession of divers lots and parcels of land, and also for the recovery of mesne rents and profits. The several lots and parcels of land described in the petition are also mentioned in the second defense set up in the defend-, ant’s answer, which is as follows:
    Second defense. — And for a second defense to said plaintiffs’ petition, defendant says that, on the 13th day of December, 1832, he was lawfully married to one Polly Holliday, and that he and the said Polly lived and cohabited together, as husband and wife, until the 22d day of June, 1873, when she died iutestate, never having bad any issue born alive by said defendant, but leaving the said Erancis B. Denny and Levina C. Minor, her only children and heirs at law, and who were such children and heirs by a former husband of said Polly. And defendant further says that his said late wife, Polly McCabe, became seized in fee simple of all the real estate described in said petition, except said lots Nos. 399, 529 and 388, in Eaton, by deeds of conveyance to her in her life time and during her said coverture with this defendant, at the times following, to-wit: Of said first described piece (undivided half of lot No. 101, in said town of Eaton), on the 31st day of December, 1844 ; of said second described piece (parts of in-lots Nos. 151, 152 and 153, in said town of Eaton), on the 7th day of May, 1853; of said third described piece (south half of lot 337, in said town of Eaton), on the 5th day of January, 1861; of said fourth described piece (out-lot No. 27 and part of out-lot No. 22, in said town of Eaton), on the 13th day of May, 1861; of said fifth described piece (lots Nos. 372 and 373, in said town of Eaton), on the 5th day of March, 1862; of said sixth described piece (part of the northwest quarter of section three, township seven, range two, east, in Preble county, Ohio), on the 20th day of April, 1863 ; of said seventh described piece (lot No. 436, in said town of Eaton), on the 25th day of February, 1867.
    Defendant further says that, at the commencement of this suit, he had and still has a legal estate for and during the term of his life in all of said real estate (except said lots Nos. 399, 529 and 388, which were purchased by said Polly after 1869, in said town of Eaton,) as tenant by the curtesy, by virtue of his said marriage with said Polly Holliday, since deceased,; and the said Francis B. Denny and Levina C. Minor had at the commencement of this suit and still have only a remainder in said premises, and they will not become entitled to the possession thereof until after the death of this defendant.
    After a demun'er to this defense had been overruled, the plaintiffs replied and the cause was submitted to the court, upon certain admissions and testimony, whereupon the court found the facts stated in the said second defense to be true, together with the additional fact that neither of the lots or parcels of land came to the wife of defendant by deed of gift from the defendant or any of his ancestors.
    
      Upon this state of facts the court rendered judgment in favor of plaintiffs for each parcel which had been conveyed to the defendant’s.wife prior to the 1st of July, 1853, or subsequent to the 1st of July, 1869, and for the defendant for the several parcels which had been conveyed to her between those dates. The plaintiffs also recovered $726.48 as mesne rents and profits.
    Thereupon each party moved for a new trial, which mo- . tions being overruled, each party excepted.
    The plaintiffs filed their petition in error in the district court to reverse so much of the judgment- as was in favor of the defendant, and the defendant filed his cross-petition to reverse the judgment in favor of plaintiffs as to those parcels of land that were acquired by his deceased wife prior to July 1, 1863.
    In the district court the cause was reserved for decision in this court.
    
      Foos Fisher and W. J. Gilmore, for plaintiffs in error.
    
      Thomas Milli/dn and Robert Miller, for defendant in error.
   McIlvaine, C. J.

By the rules of the common law relating to the rights and interests of a husband to and in the lands of his wife (which obtain in this state except in so far as .they have been modified by statute), the husband, by virtue of the marriage, is entitled, during covei’ture, to the possession and control of the real estate of his wife. ■In strictness, this right is not an estate by the curtesy, •though, sometimes called curtesy expectant, but a mere possession by him in the right of the wife. In the case before us, this marital right of the defendant in error is not of the least significance, as it was fully enjoyed by him during the whole period of coverture, which was the limit of the duration of the right.

When, however, issue of the marriage is born alive, capable of inheriting the lands of the wife, an estate in the husband begins and vests in his own right by the curtesy initiate; which estate, upon the death of the wife, remains in tbe surviving husband as an estate for his life by the curtesy consummate.

Such was the state of our law previous to July 1, 1853, when the act of March 14, 1853, regulating descents, took effect. By tbe 17th section of this act (S. & C. 504), it was provided, that “Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in dower, in any estate of any deceased persons ; and surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estate of their deceased wives by the curtesy.”

Be must be observed that this section does not purport, during the life of the Avife, to affect the marital rights of the husband or his estate by the curtesy initiate. The provision relates solely to rights in the estates of “ deceased persons.” It is the curtesy of “ surviving husbands ” which is made to inure to them “ whether there has been issue born alive during the coverture or not.” What effect this statute had, by construction, upon the estate by the curtesy initiate, if any, avg need not now inquire, as in the case before us, there was no issue born during coverture.' If this statute had remained in force until the death of defendant’s wife, unquestionably an estate by the curtesy Avould have vested in him, at that time, notwithstanding there had been no issue of the marriage.

But, on the 1st of July, 1869, while his wife was still living, and before any right had vested in the husband under this section, it was repealed by the act of March 1, 1869 (66 Ohio Laws, 21), and the following provisions substituted, by Avay of amendment, to-wit:

“Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in dower, in auy estate of any deceased person ; and surviving husbands, whether there be issue born during the coverture or not, shall be entitled to the estate of their deceased Avives by the curtesy; provided, however, that if any deceased Avife shall leave issue or legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of such issue or the legal representatives of such issue in her estate, unless the estate came to the deceased wife by deed of gift from the sui’viving husband, or by divise or deed of gift from his ancestors.”

.By this amendment, it is quite clear that the defendant was not entitled, upon the death of his wife in 1873, to curtesy in lands acquired by his wife subsequent to the date of the amendment. This is admitted by him in his answer disclaiming title to those parcels acquired by her after July 1, 1869. But it is contended by defendant that the act of 1869 can operate only on subsequently acquired lands. The contention is, that as to property acquired by her previously, to that date, an interest or estate had become vested in him, which, under the constitution, the legislature could not divest. In other word's, it is claimed that by the act of 1853, which eliminated, from an estate by the curtesy, the prerequisite “ birth of issue” an estate immediately vested in the husband, in all respects like unto curtesy initiate, by the mere facts of marriage and seizin of the wife. This we have already shown was- not the effect of the act, which left the rights of a husband in the lands of his wife, while living, and before the birth of issue, as they were at common law, and operated only to enlarge the rights of “ surviving husbands.”

The defendant having had no issue born during coverture, and having fully enjoyed his marital rights in the lands of his wife during the whole period of coverture, the áct of 1869 must determine his rights as to all the lands of which his wife was seized during coverture.

"Whether the acts- of April 3,1861, concerning- the rights and liabilities of married women, and the amendment thereof on March 23, 1866, which converted the general property of married women into separate estates and gave to them the control thereof during coverture, saving only “ the estate by the curtesy of any husband in the real property of his wife after her decease,” did not totally extinguish all right of curtesy initiate as well as the right of possession in the husband during coverture, we need not consider, as independently of these .statutes we find the defendant was not entitled to curtesy in any of the lands of which his wife died seized.

The judgment below in favor of defendant as to all lands acquired-by his wife between July 1,1853, and July 1,1869, is reversed; in all other respects it is affirmed, and cause remanded to court of common pleas.  