
    (43 Misc. Rep. 314.)
    VALENTINE v. HUTCHINSON.
    (Kings County Court.
    March, 1904.)
    1. Curtesy—When Exists.
    Decedent left, him surviving, a wife and four children. The latter conveyed to the widow a life estate in the real estate belonging to their deceased father. One of such children died prior to the widow, leaving a husband and children. Held, that on the widow’s death the husband was entitled to an estate by the curtesy in two-thirds of the interest of the property in which his wife had seisin at the time of the death of her father.
    Action by Francis E. Valentine against Anna N. Hutchinson. Motion to confirm referee’s report in partition. Modified and confirmed.
    C. & T. Perry, for the motion.
    George Bell, opposed.
   CRANE, J.

This is a motion to confirm a referee’s report in partition. The objection made to it is that the referee has found against the claim of John M. Morrison to curtesy in a certain portion of the premises.

As is too frequently the case, a difficult question is raised, and the judge left to dig out the law for himself; the briefs consisting of general statements and principles, merely.

I do not agree with the referee in his findings of fact, nor his conclusions of law regarding this claim to curtesy.

The common ancestor, Thomas Hutchinson, died at Arroyo, Porto Rico, March 31, 1881, leaving a paper purporting to be his last will and testament, but which was never probated, for reasons stated in the evidence. The estate of the deceased therefore descended as in intestacy‘to his heirs, his four children, James Hutchinson, Susan Morrison, Francis E. Valentine, and John Hutchinson, subject to the dower interest of the widow, Susan Hutchinson. Subsequently these four children, being of full age, by deed or agreement dated October 11, 1881, having the fee of the premises in question, transferred or conveyed a life interest in the entire property to their mother, Mrs. Susan Hutchinson. All that was conveyed away out of them was a life interest to their mother, and they therefore retained in themselves the reversion or remainder. They retained the fee subject to the life estate in the entire property, instead of a life estate in one-third thereof, the dower interest. I disagree with the finding of the referee that “by said instrument * * * the said Susan Hutchinson conveyed to said children upon her death whatever interest she might have in the said property.” She only had a life interest. Susan Morrison, one of the children, died March 31, 1900, before her mother, who died six months thereafter, August 16, 1900. She left a husband, John H. Morrison, and children born of him in wedlock; and the condition of her estate at her decease was that she had by inheritance a one-fourth fee interest in the property of her father, Thomas Hutchinson, subject to the life interest in her mother, Susan Hutchinson, which she had conveyed to her, still outstanding. The question raised is, does the husband have curtesy in this interest of his wife? Or has it been cut off by the conveyance of a life interest? Would the husband have had curtesy at common law or if no life interest had been granted ?

To curtesy there were four requisites: (1) Marriage; (2) seisin of wife during coverture; (3) birth of a child; (4) death of the wife. The only one of these requisites which may be lacldng here is the second— seisin of the wife during coverture. The seisin at common- law had to be, in fact, an actual seisin of the lands during coverture. Constructive possession of the wife, or a bare riglii to possess, will not support the estate. There must be actual possession, as distinguished from possession in law. This doctrine does not apply where a wife takes by deed or by will, but does apply where she takes as heir. Carr v. Anderson, 6 App. Div. 6, 39 N. Y. Supp. 746. If the only seisin, therefore, which Susan Morrison had, was that existing solely by inheritance, then there would be no curtesy, even at common law. But in the evidence it is stated by Francis E. Valentine, “Since my father’s death his heirs have been in undisputed possession thereof” (meaning the property here in partition), which, with the act of ownership instanced by the deed of conveyance to her mother, would indicate or show that seisin entitling her husband to curtesy, unless it has been cut off by her act. In some cases we find it stated that, if there be an outstanding estate for life, the husband cannot be tenant by the curtesy of the wife’s estate in remainder or reversion, unless the particular estate be ended during the coverture; that there can be no seisin in fact of a vested remainder limited on a precedent freehold estate. Tayloe v. Gould, 10 Barb. 388; Green v. Putnam, 1 Barb. 506; 1 Washb. Real Prop. (6th Ed.) 153. But upon an examination into the facts of these cases it will be seen that the outstanding life estate was created by the ancestor, and that all the wife ever had was the remainder. She was at no time seised of the fee. These are not the facts here, for the wife had an estate in fee, subject to the dower of her mother, and conveyed her other two-thirds to her mother, so as to give a life estate in the entire share.

Under the above authorities, the husband had no curtesy in the one-third dower interest, as the daughter, his wife, died before the mother. As to the two-thirds of his wife’s share, however, he would have had curtesy if she had not deeded it away for life, and does that fact deprive him of it after the life estate terminates ? If the wife does not avail herself of the right given by statute (Laws 1848, p. 307, c. 200) to convey or devise her real property, the husband will, upon her decease, become tenant by curtesy, whenever he would have been such tenant prior to the statute. Clark v. Clark, 24 Barb. 582. Is the conveyance of a life estate such an act as bars curtesy? If so, why? That an estate for years does not destroy the curtesy of a husband, see De Grey v. Richardson, 3 Atk. 469; 1 Washb. Real Prop. (6th Ed.) 153. Suppose a man seised in fee of property should convey away a life estate, in which conveyance his wife joined, would she not have dower in the reversion? . I am inclined to think that, by the conveyance of a life estate out of a fee, curtesy in the reversion is not cut off, provided the other requisites exist.

My opinion, therefore, is that Susan Morrison had a'one-quarter interest in the real property of her father, Thomas Hutchinson, subject to the dower interest of her mother—that is, one-third for life; that in this one-third dower interest John H. Morrison has no curtesy, as the wife was never seised of it in her lifetime; that, the remaining two-thirds of the one-quarter interest having been conveyed away by the wife for life only, curtesy therein was not wholly cut off, but the husband has a life estate therein after the decease of the life tenant. The life tenant being dead, the value of this life estate by curtesy in two-thirds of Susan Morrison’s share can be easily ascertained according to the Northampton tables. 0

I therefore modify the referee’s report so as to allow curtesy as herein specified, and in all other particulars confirm said report. The husband may consent to take a gross sum, in accordance with section 1569 of the Code, if he choose.

Ordered accordingly.  