
    Charles v. Charles.
    
    January Term, 1852,
    Richmond,
    (Absent Cabell, P.)
    [56 Am. Dec. 155.]
    i. Antenuptial Contracts — Bar to Marital Rights. — The rights of a husband to the property of his intended wife, may he intercepted hy his agreement to that effect. And where hy express contract he fore and in contemplation of marriage, for which the marriage is a sufficient consideration, he agrees to surrender his right to the enjoyment of the property during the coverture, and his right to take as survivor, there remains nothing to which his marital rights can attach during the coverture, or after the death of the wife. In such case the wife is to all intents tobe regarded as a feme sole in respect to such property; and there is no necessity that the marriage contract or settlement should limit the property to her next of kin upon her failure to appoint; hut it will pass as if the wife died sole and intestate.
    2. Administrators -Appointment — When Husband Not Entitled to. — If the husband has relinquished his marital rights to his wife’s property, he is not entitled to administration upon her estate.
    A marriage being about to take place between Henry H. Charles of the county of York, and Martha P. Wynne, widow of Richard Wynne deceased, a deed bearing date the 8th day of October 1835, was executed by the parties for the settlement of her property. This deed recited that it had been agreed between the x'parties that Mrs. Wynne should, after the marriage, receive and enjoy, during the joint lives of the said Wynne and Charles, the interest and occupation of her personal estate; and also that the same, and the interest and profit thereof, from and after the deceased of such of them as should first happen to die, should be at the sole and only disposal of the said M. P. Wynne, notwithstanding; her coverture. And that it had been also agreed, that in case the said Charles should, after the marriage, happen to survive the said M. P. Wynne, that he should not claim any part of the real or personal estate whereof the said M. P. Wynne should be seised or possessed or entitled to, at any time during the coverture; and that the said real and personal estate of the said M. P. Wynne should be in nowise under the control of said Charles, nor in any manner or at any time subject to his debts.
    The deed then proceeds to convey in the name of M. P. Wynne to James Kirbv, sr., with the consent and approbation of Charles, which is witnessed by his sealing the deed, all her property both real and personal, in trust for Mrs. Wynne until the marriage, then upon trust that Kirby will permit her to enjoin the sole, separate and exclusive use of the said property for her own separate and special use; and upon the further trust that the trustee will permit the said M. P. Wynne to dispose of the said property by deed, will or otherwise, as she shall think proper; and that he will convey a legal title to the person or persons to whom she may convey the property. This deed was executed by Charles, Mrs. Wynne and the trustee, and duly admitted to record: And the marriage took place.
    In December 1849 Mrs. Charles died, leaving her husband surviving her, without having disposed of her estate either by deed or will, or otherwise. She left no child surviving her or descendant of a child, though she had had children by her two former marriages; but they had died before her marriage with Henry H. ^Charles. Her distributees, if her husband was not entitled to her per-" sonal estate, were her nieces, descendants of sisters, of whom one was married to William H. Charles.
    The slaves belonging to Mrs. M. P. Charles at the time of her marriage, never went into the possession of the trustee, but always remained in the possession and enjoyment of Henry H. Charles, during the coverture.
    At the April term 1850 of the Circuit court of York county, Henry H. Charles moved the Court to be permitted to qualify as the administrator of his late wife, Martha P. Charles; which motion was opposed by William H. Charles, who asked for the administration for himself, on the ground of his marriage with one of the nieces of Martha P. Charles, entitled, as he insisted, to a portion of the estate. These motions came on to be heard together in April 1851, when the Court overruled the motion of Henry H. Charles, and granted the administration to William H. Charles. And thereupon an exception was taken to the opinion of the Court, and Henry H. Charles applied to this Court for a supersedeas, which was awarded.
    Morson, for the appellant.
    It is submitted that the decision of the Circuit court was erroneous and prejudicial to Henry H. Charles, and ought to be set aside and reversed. He must by operation of law be entitled to the property, unless the deed has intercepted the rule of law, and by substituting a rule of its own and a rule intended to apply to the emergency which has occurred, has clearly not only taken the property from him, but given it to others. For where, upon a given state of facts, the rule of law turns property over to one man, it cannot be turned over to another by any compact, agreement or declaration of any party or parties which stops short of clearly giving, and manifesting an intention to give it to such other. *Heirs cannot be disinherited by the strongest declarations in a will that they shall not take: the will must go further and designate others who shall take. Boisseau v. Aldridges, 5 Leigh 222. By similar reasoning, husbands cannot be deprived of their rights of property arising “jure mariti” by a deed which shall even declare that they should not have them, unless the deed further provided that! they should go to others. If they be not by the deed, in the event that has occurred, turned over to any body, then it is not a “casus foederis,” not a case which the deed has provided for, but a “casus omis-sus,” one for which a rule must be found not in the deed, but in the general principles of the law. And these general principles give the property to the husband; enable him to qualify as the wife’s administrator, and afterwards to keep possession absolutely for his own benefit, subject only to the payment of her debts. See 1 Co-max’s Ex’rs 135, 136, 310, 311; Tate’s Dig. 394-5, § 7. See also Code of Virginia of 1849, p. 541, l 4. !
    Even should it be held, then, that the words of the deed manifested an intention to take the subject from the husband upon the contingency that has happened, they failed to give it to others and only authorized the wife so to give it; and this she has never done. Of consequence neither the deed nor the wife has ever yet given the subject to others; and if given to others it can only be by operation of law. But there certainly is no rule of law which, under the circumstances, can give the property to others; though there is the general rule of law which does give it to the surviving husband.
    It is worthy of remark, that in the recital of the deed, as well as in the express declarations of trust, while great care is evinced to secure the property to the separate use of the wife, and to give her the power to dispose of it, there is an utter absence of any expression or provision to point out how it is to go in case of *her making no such disposition.
    The trustee, ‘ ‘his executors, administrators and assigns,” are to permit the feme [studiously omitting, apparently, her executors or administrators], to enjoy the separate use of the property, and to dispose of it by deed, will or otherwise; and they are required to convey the legal title to the person or persons to whom she may convey the property. Now this omission is very strong to shew, [made as it was in a deliberate deed,] that as against the husband, the only parties intended to be preferred, certainly the only parties expressly preferred, were the feme and her appointees; and it is unnecessary to dwell upon the essential distinction between such appointees and the present . antagonists of the husband. Indeed, it can scarcely be doubted, that in the case of Bray v. Dudgeon, 6 Munf. 132, the introduction of expression, where here there is omission, was the turning point of the adjudication. There, the deed expressly provided, that upon the failure of the wife to appoint, “her proper and legal heirs” should take; and it is manifest that it was this provision which excluded the husband alike from the administration and the property. A similar commentary obviously occurs in reviewing the case of Ward v. Thompson, 6 Gill & John. 349, in which the rights of ! the husband were held to be extinguished by the stipulation that without his interference in any manner the trust subject should be under the exclusive and entire management and control of the wife, “her heirs, executors, administrators or assigns,” who, it was agreed, should “receive and enjoy the rents, issues and profits.” The case of Marshall v. Beall, 6 How. S. C. R. 71, is explicable in the same way. And the governing principles applicable to the present case, and similar cases, are very luminously illustrated by Chancellor Kent in Stewart v. Stewart, 7 John. Ch. R. 229, 245, 246, 247, a case which takes what seems to be the true ground, that the marital rights of the husband, *over the property of his wife, can only be extinguished by plainljr and clearly giving that property to others, or by conferring on the wife, or her representatives, other than the husband, the power to make and accomplish such gift, and an execution by her or them of such power.
    Besides, it is submitted, that the true construction of the recitals in the deed, does not authorize the inference that they are intended to deprive the husband entirely, at all events, and upon every contingency, of all rights of property in the trust subject. That passage in the recital, [omitted in the declaration of trusts,] which provides that the husband, in case of surviving the wife, should not claim any part of the trust subject, ought to be taken in connection with the rest of the deed: and so taken cannot properly be made to do more than stipulate that the husband, as against the claims of the appointees under the wife, [so appointed in conformity with the deed,] should not assert any conflicting or repugnant rights. This would reconcile all parts of the deed. Anything else would bring them in conflict. But should such conflict be brought on, the recital would have to give way to the declarations of trust. Mere matter of introduction could not over-ride the solemn provisions in the conveyance and the declarations of the trust therein. Stewart v. Stewart, 7 John. Ch. R. 229; Sheph. Touch, ch. 5, p. 75, 76, note 62, 78, 77, 88, in 30 Eaw Iflbr.
    If not precluded from taking the property, of course he is entitled to the administration.
    Meredith, for the appellee.
    The whole question is, who is entitled to the estate of Mrs. Charles? On the question who is entitled to administration there has been some vacillation in the decisions on the English statutes; but when the case came up between the husband and the next of kin, it *was decided in favour of the husband; but he took the administration because he was entitled to the property; and only when entitled. Fielder v. Hanger, 5 Eng. Eccl. R. 265; Watt v. Watt, 3 Ves. R. 244; Bailey v. Wright, 18 Ves. R. 49; Eettiplace v. Gorges, 1 Ves. jr. 46; 1 Wms. Ex’ors 244; Toller’s Ex’ors 85, 116; Cutchin v. Wilkinson, 1 Call 1; Hen-dren v. Colgin, 4 Munf. 231; Bray v. Dudgeon, 6 Munf. 132; Thornton v. Winston, 4 Leigh 152. These cases shew that the person entitled to the property is entitled to administration on the wife’s estate.
    The enquiry then is, what interest did Henry H. Charles take in his wife’s estate. And this depends on the construction of the deed of the 8th of October 1835, executed by the parties. Pending the treaty of marriage the husband covenanted that she should have her own estate; and that he would not claim any interest in it if he survived her. The property of the wife was not property in possession, in which the title of the husband was perfected by marriage; or there would have been no necessity for administration on her estate. But the legal title was in the trustee and the beneficial interest was in the wife; and as there must be a joint interest, in order that one may take as survivor, there could be no title by survivorship in the separate property of the wife.
    It is insisted by the counsel on the other side, that though it is true that the husband excludes himself, he should have gone further and pointed out some one else to take the property in the event of the intestacy of the wife. And Boisseau v. Aldridges, 5 Leigh 222, is relied on for the proposition. But there the son was no party to the instrument ; here the husband is a party to the deed; and he in consideration of the marriage covenants that he will not take anything either during the marriage or if he survives the wife. This is all the husband could do. He had no right to say how the *property should go; nor had he any interest which he could convey.- All that he had was such an interest as he could only release and only release to her; and that he did, and thereby her title became perfect. King v. Bettes-worth, 2 Strange’s R. 1118; 2 Story’s Equ. Jur. § 1382. This last authority and the cases there cited, shew that all the husband has to do, to exclude himself, is to create a separate estate in the wife, and that excludes him.
    It is said that the wife should have made an appointment; and that it is only her appointee who can exclude the husband. The wife here stands as a feme sole, and has the power and the estate of a feme sole; and an appointment is unnecessary to pass her property. Here Mrs. Charles had a separate estate on which there was no limitation as to time; and therefore she had the power to dispose of it without regard to the power of appointment. Tappenden v. Walsh, 1 Eng. Eccl. R. 100; Fettiplace v. Gorges, 1 Ves. jr. 46; 2 Story’s Equ. Juf. 1389, 1390, 1394. In such a case it is not ilecessary that the deed or marriage agreement should direct who shall take the estate after the death of the wife without making an appointment. Bradley v. Westcott, 13 Ves. R. 445, 451; Barford v. Street, 16 Ves. R. 135; Anderson v. Dawson, 15 Ves. R. 532; Gackenback v. Brouse, 4 Watts & Serg. 546.
    
      
      For monographic note on Curtesy, see end of case.
    
    
      
      Antenuptial Contracts — Bar to Marital Rights.— Parties, when about to contract the relation of husband and wife, may, hy agreement vary or wholly waive the rights of property which would otherwise result from the marriage. Findley v. Findley, 11 Gratt. 437, citing as its authority Faulkner v. Faulkner, 3 Leigh 255; Charles v. Charles. 8 Gratt. 486. To the same point, see the principal case cited with approval in Beard v. Beard, 22 W. Va. 138. In this case, there was a marriage settlement in which the contracting parties agreed that “all the property, hoth real and personal, owned hy them shall remain separate and under his or her control and each in his or her ownname the same as if they had never been married; and that none of the property of either one shall he subject to the debts of the other; and that they relinquish all claim, title or interest in each other’s property that might rest in them under the law hy reason of their expected marriage.” The wife died intestate and without issue, the husband surviving her, and it was held that he was entitled to the whole of the wife’s-personal estate to the exclusion of her next of kin, the court saying that there was nothing in the marriage contract indicating clearly that he intended to release his interest accruing hy reason of her death intestate hut only such interest as accrued hy reason of the marriage, that is, his marital right during the existence of the coverture to take possession of and hold as his own all her personal property.
      In Hinkle v. Hinkle, 34 W. Va. 142, 11 S. E. Rep. 992, an antenuptial contract was entered into hy a woman on the eye of her marriage hy which she agreed to waive and relinquish forever all such right, title, or interest in and to any part of the estate, hoth personal and real, or the proceeds of' the sale of either or hoth, of which her intended husband was then or might thereafter come in possession or acquire ; never to claim at law or otherwise, as she would he entitled to in the estate of the intended husband after intermarriage with him, any part of his property or estate hy reason of the solemnization of the marriage between them ; that she should never in the future acquire any' property, rights, etc., to any part of tie estate of the intended husband further than he might convey to her by gift or will; and further, that he should, at all times during his life have the right to convey any part of his real estate without her consent. The court, basing its opinion on the case of Beard v. Beard, 22 W. Va. ISO, held that this contract did not either expressly or by necessary implication cut off and bar her right of dower should she survive the husband. Lucas, J„ delivering the opinion of the court, said that a contract relinquishing all material rights, made by a man in contemplation of marriage, would undoubtedly be enforced, citing the principal case as his authority. Continuing, he said : “But as against the woman, there being no similar case as yet reported in Virginia or this state, I should be very unwilling to establish such a precedent. ***** i should conclude, therefore, that because the man may accept the marriage as a. consideration sufficient to sustain his agreement to renounce and waive all right in his wife’s property during coverture, and of survivorship, should he outlive her, nevertheless, it by no means follows that the weaker vessel, who has been induced to betroth herself in marriage, can, without any other consideration whatever, and in the absence of all reciprocal engagements, on the part of the man, and without any provision whatever for jointure, bind herself by an antenuptial agreement not to claim any of the rights of survivorship in his property should she survive him. I think such a contract would be adverse to the spirit, if not in direct contravention, of our statute. And such an opinion, were it necessary to decide the point, would be abundantly sustained by the highest authorities.”
      See further on this subject, monographic note on "Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
   ALLEN, J.,

delivered the opinion of the Court.

The deed of marriage settlement duly executed by the parties and their trustees before marriage, recited amongst other things that it hath also been agreed, that in case the said Charles should after the intended marriage happen to survive the said Martha, that he should not claim any part of the real or personal estate whereof the said Martha should be seised or possessed or entitled to at any time during the coverture between them; and that the said real and personal estate of said Martha *should be in no wise ■ under the control of. the said Charles, nor in any manner or at any time subject to his debts. The deed then proceeds to grant the property of the intended wife to the trustee, and by the declaration of trust the separate and exclusive use of the property is secured to the wife; the trustee was to permit her to dispose of it by will or otherwise and to convey the property to such appointee or alienee: but in the declarations of trust there is no express provision excluding the husband in the event of his surviving, and in default of any appointment or disposition by the wife. And it is contended that by operation of law the husband surviving is entitled in virtue of his marital rights, to take the property, as she did not dispose of it or appoint the uses to which it should be applied after her death. The rights of the husband to the property of his intended wife may be intercepted by his agreement to that effect; and where by express contract, for which the marriage is a sufficient consideration, he agrees to surrender his rights to the'' enjoyment of the property during the coverture, and his right to take as survivor, there remains nothing to which his marital rights can attach during the coverture or after the death of the wife. In such case the wife is to all intents to be regarded as a feme sole in re,spect to such property; and there would seem to be no necessity for any limitation over to her next of kin in the event of a failure to appoint during her lifetime. The husband having bj contract for a good consideration released his rights as survivor, the property must pass as though she had died sole and intestate. That such was the intent of the parties in this case is clear from the deed. The contingency of his surviving was foreseen, and the agreement as recited in the deed.signed by all the parties provided for it. Bj- that agreement so recited, he bound himself not to claim the property should he happen to survive his wife. There is nothing to indicate *an intention to restrict the claim as against the appointees of the wife. The expressions refer not to persons against whom he would not claim, but to the subject as to which in that contingency he released all claim; and to show more clearly that such was the intent of the agreement, it is furthermore recited that the property was not to be under his control, ,or in any manner or at any time subject to his debts, not restricting* the time to the continuance of the coverture.

Having thus by contract intercepted the marital rights of the husband either to enjoy during coverture or to take by survivor-ship; and this intention appearing on the face of the deed, it was only necessary that the declarations of trust should provide for the control and authority of the wife during the coverture. And the property, if not disposed of, passed to her personal representative for the benefit of her next of kin, as if no marriage had ever taken place, and she had died sole and intestate.

The right of the husband to administer depending on the question whether in virtue of the marital right he is entitled to the property, and as by the agreement recited in the deed of settlement he relinquished and renounced such rights, his motion to administer was properly overruled, and the administration granted to the ap-pellee, one of the distributees of the deceased. The order should be affirmed.

CURTESY.
I. Definition.
II. Requisites.
A. In General.
B. Seisin of the Wife.
C. Birth of Issue-West Virginia.
HI. Nature and Incidents.
A. Curtesy Initiate.
B. Curtesy Consummate.
IV. Instates Subject to Curtesy.
A. In General — Must Be Estate of Inheritance, fí. Determinable "Estates.
C. Wife's Equitable Separate Estate.
D. Wife's Statutory or Legal Separate Estate.
V. How Curtesy Defeated.
A. By Divorce.
B. By Desertion.
C. By Antenuptial Contract.
D. By Husband’s Joining* in Wife's Conveyance.
E. By Instrument Creating* Wife's Estate.
F. By Wife’s Devise.

Cross Reference to flonographic Note.

Dower, appended to Davis v. Davis, 25 Gratt. 587.

I. DEFINITION,

“When a man takes a wife seized during* the cover-ture of an estate of inheritance, legal or equitable, such as that the issue of the marriage may by possibility inherit it as heir to the wife, has issue by her born alive during the coverture, and the wife dies, the husband surviving has an estate in the land for his life, which is called an estate by the curtesy. 2 Bl. Com. 126.” Breeding v. Davis, 77 Va. 639; 2 Min. Inst. (4th Ed.) 114.

“Curtesy is the estate to which by common law a man is entitled, on the death of his wife, in the lands or tenements of which she was seised in possession in fee simple, or in tail during their coverture, provided they have had lawful issue born alive which might have been capable of inheriting the estate.” Breeding v. Davis. 77 Va. 639.

West Virginia. — Under the present (1899) Code of West Virginia, “if a married woman die seized of an estate of inheritance in lands, her husband shall be tenant by the curtesy in the same. An estate by the curtesy in the lands of which a married woman may hereafter die seized, shall exist and be held by her husband therein, whether they had issue born alive during the coverture or not.” W. Va. Code 1899, ch. 65, 115, p. 666; Alderson v. Alderson, 46 W. Va. 242, 33 S. E. Rep. 228. But the former statute, W. Va. Code 1868, ch. 65, § 15, as amended by Acts 1872-3,. ch. 207, § 2, providing that “if a married woman die seised of an estate of inheritance in lands, her husband shall be tenant by the curtesy in the same,” did not dispense with any of the four common-law requisites of curtesy: marriage, seisin of the wife, issue born alive and death of the wife, but was only declaratory of the common law. Winkler v. Winkler, 18 W. Va. 455; Pulton v. Johnson, 24 W. Va. 95.

II. REQUISITES.

A. IN GENERAL.

Curtesy Initiate. — The requisites of curtesy initiate are marriage, seisin of the wife during coverture and birth of issue alive. Breeding v. Davis. 77 Va. 639.46 Am. Rep. 740; Porter v. Porter, 27 Gratt. 599.

Curtesy Consummate. — In order to entitle the husband to an estate by the curtesy consummate, the above requisites must exist and the death of the wife in the husband’s lifetime must also occur. Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740; Muse v. Friedenwald, 77 Va. 57; Carpenter v. Garrett, 75 Va. 129; Porter v. Porter, 27 Gratt. 599.

B. SEISIN OP THE WIPE.

Necessity for Actual Seisin. — Seisin in law of the wife is not sufficient to invest the husband with an estate as tenant by the curtesy. Nothing short of seisin in fact or actual seisin will effect this. Carpenter v. Garrett, 75 Va. 129; Pulton v. Johnson, 24 W. Va. 95; Stuart v. Stuart, 18 W. Va. 675.

By virtue of a decree of confirmation of a judicial sale of vacant and unoccupied lots or lands, the purchaser has, by construction of law, such possession as amounts to such seisin in fact as will entitle the husband of the purchaser to curtesy in the lots or land. Seim v. O’Grady, 42 W. Va. 77, 24 S. E. Rep. 994.

Where real estate is devised to trustees for the use of the wife and family of the testator’s son, and to his heirs forever, and the son ceavses to have a family, he is not thereby entitled to any curtesy in his wife’s interest in the property in case of her death before their youngest child attains majority, the wife never having in fact been seised of the land during the coverture. Stuart v. Stuart, 18 W. Va. 675.

Distinction between Seisin in Fact and Seisin in Law. —“Seisin in fact or in deed, as Lord Coke calls it, or actual seisin, means possession of the freehold by the pedis positio of one’s self or one’s tenant or agent, or by construction of law, as in case of a commonwealth’s grant, a conveyance under the statute of uses, or doubtless of grants or devise, where there is no actual adverse occupancy. Seisin in law is a right to the possession of the freehold, when there is no adverse occupancy thereof, such as exists in the heir after descent of lands upon him before actual entry by himself or his tenant.” Carpenter v. Garrett. 75 Va. 129; Seim v. O’Grady, 42 W. Va. 77, 24 S. E. Rep. 994; 2 Min. Inst. (4th Ed.) 123.

Hence, under Va. Code 1819, ch. 107, § 2 (see Va. Code 1887, § 2274). allowing the widow to remain on the premises until the assignment of her dower, free of rent, where the widow thus remains in possession, she is seised of the premises; and if her daughter, one of the heirs of her husband, marries, has issue born alive and dies in her mother’s lifetime, the husband of the daughter is denied curtesy because of the lack of actual seisin during coverture. Carpenter v. Garrett, 75 Va. 129; Pitzer v. williams, 2 Rob. 241.

C. BIRTH OF ISSUE — WEST VIRGINIA. — Since the Act of 1882, W. Va. Code 1899, ch. 65, § 15, the birth of issue is no longer a requisite to curtesy in West Virginia, it being provided by said section that “an estate by the curtesy in the lands of which a married woman may hereafter die seised shall exist and be held by her husband therein, whether they had issue born alive during the coverture or not.” See Alderson v. Alderson, 46 W. Va. 242, 33 S. E. Rep. 228. But W. Va. Code 1868, ch. 65, § 15, as amended by Acts 1872-3, ch. 207, § 2, providing that “if a married woman die seised of an estate of inheritance in lands, her husband shall be tenant by the curtesy in the same,” did not dispense with the requisite as to birth of issue, but was merely declaratory of the common law. Winkler v. Winkler, 18 W. Va. 455.

III. nature and incidents.

A. CURTESY INITIATE.

In General. — After the birth of issue a husband, as tenant by the curtesy initiate, is seised of a freehold estate in the wife’s land in his own right, and the interest of the wife is a mere reversionary interest, depending upon the life estate of the husband. Breeding v. Davis, 77 Va. 639.

Liability for Debts. — Where, prior to the adoption of the W. Va. Code of 1868, the husband by marriage and the birth of issue alive had become tenant by the curtesy initiate of the freehold property of his wife, the life estate of the husband in such estate is liable for the payment of his debts, notwithstanding the provision of ch. 66 of the said Code, and of the W. Va. Constitution of 1872. Wyatt v. Smith, 25 W. Va. 813.

How Present Value Computed. — See Va. Code 1887, § 2281; W. Va. Code 1899, ch. 65, § 17, p. 666. See also, monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.

Effect of the Married Woman’s Act on Curtesy initiate, The Married Woman’s Act, Acts 1876-77, pp. 333-4 (see Va. Code 1887, § 2284 et sea-) giving the wife the power to possess, enjoy and devise her separate estate as if sole, destroys the tenancy by the curtesy initiate; but if the wife dies without having alienated the lands, the husband’s curtesy attaches. Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740.

Under the Married Woman’s Act, the husband’s inchoate tenancy by the curtesy, and the right to reduce into his possession his wife’s choses in action are destroyed, neither being vested rights. Alexander v. Alexander, 85 Va. 353, 7 S. E. Rep. 335.

Under the Married Woman’s Act, the husband has only a modified tenancy by the curtesy, dependent upon a contingency, and no estate vests in the husband during the life of the wife. This is rather a shadowy estate. It is an interest which may possibly ripen into something tangible in the uncertain future. Previous to the act, it could be sold on execution against the husband. Now the wife has the sole control of her real estate during her life, and the husband has no interest until her death. This estate at best is now a bare possibility, dependent on his surviving his wife. Breeding v. Davis, 77 Va. 639.

Liability for Debts under Married Woman’s Act.— Since the passage of the Married Woman’s Act, the husband’s curtesy initiate in his wife’s lands cannot be sold to pay his debts. Welsh v. Solenberger, 85 Va. 441, 8 S. E. Rep. 91.

Where property which constituted a wife’s separate estate was conveyed by a deed in which the husband united, a judgment against him did not constitute a lien on the husband’s estate by the curtesy in such property, since during the wife’s life the husband had no interest in the property to which the judgment could attach. Bankers’, etc., Co. v. Blair, 99 Va. 606, 39 S. E. Rep. 231, 7 Va. Law Reg. 253.

B. CURTESY CONSUMMATE. — The death of the wife is one of the requisites for curtesy. During the wife’s life, after issue born alive, the husband is said to be tenant by the curtesy initiate. Upon her death only, is he tenant by the curtesy consummate. Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740.

A wife seised of a separate estate of inheritance in coal lands leased the same for the purpose of mining and removing coal, in consideration of a royalty to be paid by the lessee, but no mine was actually opened until after her death. Held, that the husband is entitled to curtesy in the royalties arising from said lease, and that the mine is to be considered as open at the time of the wife’s death. Alderson v. Alderson, 46 W. Va. 242, 33 S. E. Rep. 228.

Where lands which a married woman has inherited from her father have been applied by the executor to the payment of her father’s debts, her husband is entitled, as tenant by curtesy, to be reimbursed out of the father’s personal estate by an amount equal to the rents and profits which the executor has misapplied. Taliaferro v. Burwell, 4 Call 321.

Distinguished from Dower. — Dower requires to be assigned; curtesy needs no assignment, but takes effect immediately uppn the wife’s death. 2 Min. Inst. (4th Ed.) 183; 8 Am. & Eng. Enc. Daw, 518.

Distinguished from Marital Right. — “Although the tenancy by the curtesy is ordinarily, to appearance, a mere prolongation of the tenancy by the marital right, enabling the husband to hold for his own life what otherwise would terminate with the life of the wife, yet the tenancy by the marital right attaches to some estates to which the tenancy by the curtesy cannot attach, though there should be issue of the marriage, as, for example, estates for life —even estates pur autre vie. And to other estates it cannot attach, in which there may be curtesy, as, for example, estates held for the separate use of the wife. In such estates, under some circumstances, there may be curtesy; but it is of their very essence not to be subject to the marital right." Porter v. Porter, 27 Gratt. 599.

Liability for Debts. — The husband’s estate by the curtesy consummate exists in the wife’s lands un-aliened by her during her lifetime, though devised byher will. Such estate is subject to the liens of the husband’s creditors acquired during the coverture, in preferente to the general liens of her creditors upon her real estate. Acts 1876-7, pp. 333-4; Acts 1877-8, p. 248; Browne v. Bockover, 84 Va. 424, 4 S. E. Rep. 745.

Effect of Judgment against Husband. — The husband has no interest, during the lifetime of the wife, in the real estate acquired by her as a separate estate under the act of April 4,1877, as amended by the act of March 14, 1878. If the wife .dies intestate and the husband is entitled to curtesy, a judgment against the husband during the coverture will attach to his estate by the curtesy, but in subordination to a deed of trust made toy the husband and wife during the coverture. Campbell v. McBee, 92 Va. 68, 22 S. E. Rep. 807.

Ascertainment of Tenant’s Interest — Right to Hiñ-erais. — A tenant toy curtesy, agreeing- to take a gross sum in the proceeds of the sale of realty in lieu of a life estate therein, is entitled to the value of his deceased wife’s interest in the realty, with a deduction for the value of the coal therein, where the land was chieily valuable for the coal, and the mines had not been opened, as a life tenant has no interest in unopened mines or right to open or work the same. Bond v. Godsey, 99 Va. 564, 39 S. E. Rep. 216, 7 Va. Law Reg. 264, and note, p. 268.

Same — Right to Timber, — In ascertaining the value of the interest of a tenant toy the curtesy in realty, the value of the timber on the land should not toe deducted, where the value of the land is increased toy the cutting of such timber. Bond v. Godsey, 99 Va. 564. 39 S. E. Rep. 216, 7 Va. Law Reg. 264.

IV. ESTATES SUBJECT TO CURTESY.

A. IN GENERAL — MUST BE ESTATE OP INHERITANCE. — There can toe no curtesy except in a fee-simple estate in land. Muse v. Priedenwald, 77 Va. 57.

At common law the husband was entitled to cur-tesy in all the real estate of which the wife died seised, whether such estate was separate estate or not. Winkler v. Winkler, 18 W. Va. 455.

B. DETERMINABLE ESTATES. — A wife, owning an estate in lands and personal property determinable upon her death under age and without issue, had issue, which died immediately, and then died under age. Held, that her husband was entitled to curtesy in the lands, tout had no interest in the personal property. Taliaferro v. Burwell, 4 Call 321. See also, Jones v. Hughes, 27 Gratt. 560.

C. WIPE’S EQUITABLE SEPARATE ESTATE.— The husband, if he survives his wife and the common-law requisites exist, is entitled to curtesy in any real estate held toy her as her equitable separate estate, which may remain at her death undisposed of toy her during the coverture, or toy will, under a power to that effect vested in her by the instrument creating the separate estate, just as in any other real estate of inheritance owned toy her. unless his marital rights are excluded toy such instrument. Whether they are excluded or not depends upon the intention of the grantor. This may appear from the instrument creating the separate estate in the wife, or ma3 result from the nature of the transaction. Where the separate estate is created toy a stranger, the intention to exclude must toe plain and unequivocal, or the husband will toe entitled to curtesy. Burk’s Separate Estates, 14-15; Jones v. Jones, 96 Va. 749, 32 S. E. Rep. 463; Chapman v. Price, 83 Va. 392, 11 S. E. Rep. 879; Mitchell v. Moore, 16 Gratt. 275; Nixon v. Rose. 12 Gratt. 425; Charles v. Charles, 8 Gratt. 486.

An estate toy the curtesy in the separate estate of the wife remains in the husband, unimpaired toy statutes for the better securing of the property of a married woman, which declare that she shall hold the property to her sole and separate use, and that it shall not toe subject to the disposal of her husband, or toe liable for his debts. Alderson v. Alderson, 46 W. Va. 242, 33 S. E. Rep. 228.

Same — Not Affected by Married Woman’s Act. — The Married Woman’s Act, Acts 1877-78, p. 248, after providing for the curtesy of the husband and the dower of the wife to toe unaffected toy the act, provides further, “that the sole and separate estate created toy any gift, grant, devise or bequest shall toe held according to the terms and powers, and toe subject to the provisions and limitations thereof, and to the provisions and limitations of this act. so far as they are [not] in conflict therewith.” Held, that the word “not.” as inserted in brackets, was omitted by inadvertence and its insertion is necessary to carry out the intention of the legislature. Hutchings v. Commercial Bank, 91 Va. 68, 20 S. E. Rep. 950, overruling Hutchings v. Commercial Bank (Va.), 17 S. E. Rep. 477.

Under the Married Woman’s Act, as construed above, where property is conveyed to a trustee for the separate use and benefit of the wife, free from the debts and liabilities of her husband, there is created an equitable separate estate, which must toe governed toy the provisions of the instrument creating the same, and the wife may devise such estate to others than herhustoand. Hutchings v. Commercial Bank, 91 Va. 68, 20 S. E. Rep. 950.

Same — Where Created by Husband. — But where the equitable separate estate is created toy the husband, the intention to exclude is presumed or results from the transaction itself, except so far as he may have reserved his marital rights in the instrument creating such estate. The law attaches to every absolute conveyance complete alienation of the entire interest of the grantor, so far as the alienation is permitted toy the principles of law and equity. Upon this principle, the law presumes that a husband, toy an absolute conveyance creating an equitable separate estate in the wife, intended to vest in her entire interest in the subject conveyed, including all his marital rights, present and future, and the conveyance is so construed. Consequently, a husband has not an estate as tenant toy the cur-tesy in land conveyed toy him in such a manner as to create an equitable estate in his wife, whether the conveyance toe made directly to her or to another person for her, in the absence of a reservation in the conveyance of his right thereto at her death. Burks’ Separate Estates, 16; Sayers v. Wall, 26 Gratt. 354; Irvine v. Greever. 32 Gratt. 411; and Dugger v. Dugger, 84 Va. 130, 4 S. E. Rep. 171; Jones v. Jones, 96 Va.749, 32 S. E. Rep. 463.

Where a husband conveyed all his real property to his wife, it was held that, though the deed was void at law, it was valid in equity and the husband was not entitled to curtesy in the property. Sayers v. Wall, 26 Gratt. 354, 21 Am. Rep. 303.

A separate estate created toy the gift, conveyance or settlement of the husband to or for his wife, whether directly or through a trustee, presumptively excludes the husband from tenancy toy the curtesy in such estate. A gift from the husband to his wife is construed to toe for her separate use. Dugger v. Dugger, 84 Va. 130, 4 S. E. Rep. 171.

A husband is not entitled to curtesy in an equitable separate estate of the wife, created toy him, although all the common-law requisites for curtesy exist. He is excluded toy the nature of the transaction. Jones v. Jones, 96 Va. 749, 32 S. E. Rep. 463.

B. WIRE’S STATUTORY OR LEGAL SEPARATE ESTATE. — It is provided toy statute in West Virginia that the husband shall toe entitled to curtesy in the wife’s separate estate. Winkler v. Winkler, 18 W. Va. 455.

Where a father gives his married daughter land “to have and to hold in her own right, free from any claims or demands from her husband or any person or persons claiming under, through, or against him ia any way, now or at any time hereafter,” she has a sole ana separate estate therein, which she can dispose of by will free from the right to curtesy which the husband would otherwise have. Chapman v. Price, 83 Va. 392, 11 S. E. Rep. 879.

Whether a separate estate is an equitable separate estate or a statutory separate estate must be determined from the language and provisions of the instrument to be construed in each case. If the instrument grants powers or imposes restrictions not granted or imposed by the statute, but which are consistent with the rules and principles of enuity, the estate will be construed to be an equitable and not a statutory separate estate, and that which, prior to the passage of the “Married woman’s Act,” was held to be an equitable separate estate, retains that character, is controlled by the provisions of the settlement by which it was created, and is governed by the rules and principles applicable to such estate. Dezendorf v. Humphreys, 95 Va. 473, 28 S. E. Rep. 880; Jones v. Jones, 96 Va. 749, 32 S. E. Rep. 463.

At common law, in the grant of an estate of inheritance to a married woman, the husband’s right to curtesy could not be excluded; but the husband may be deprived of his curtesy in the married woman’s “separate estate,” where the intention so to do is plainly manifested in the instrument creating such estate. Chapman v. Price, 83 Va. 392, 11 S. E. Rep. 879.

V. HOW CURTESY DEFEATED.

A. BY DIVORCE. — A divorce a mensa et thoro, where there is a decree for the perpetual separation of the parties, has the same effect upon the rights of property which either party may acquire after the decree as a divorce a vinculo matrimonii would have. Va. Code 1887, § 2264; Marshall v. Baynes, 88 Va. 1040, 14 S. E. Rep. 978.

A divorce a vinculo matrimonii, although for a supervenient cause, or for a cause which, while it existed at the date of the marriage, is yet by statute specially declared to dissolve the marriage only from the time of the sentence, operates as a bar to dower or curtesy. Porter v. Porter, 27 Gratt. 599; Harris v. Harris, 31 Gratt. 13; Cralle v. Cralle, 79 Va. 182; Cleek v. McGuffln, 89 Va. 324, 15 S. E. Rep. 896. See 2 Min. Inst. (4th Ed.) 137.

upon decreeing the dissolution of a marriage, whether from the bond of matrimony or from bed and hoard, the court may make such further decree as it may deem expedient in regard to the estate, etc., of the parties. Va. Code 1887, § 2263. See Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12; Cralle v. Cralle, 79 Va. 182; Francis v. Francis, 31 Gratt. 283; Harris v. Harris, 31 Gratt. 13; Porter v. Porter, 27 Gratt. 599; Carr v. Carr, 22 Gratt. 168; Bailey v. Bailey, 21 Gratt. 43.

Curtesy and dower are barred by a decree of divorce a vinculo matrimonii; and the same principle applies to maintenance, in the absence of any provision in the decree as to the property rights of the parties. Cralle v. Cralle, 79 Va. 182.

Deeds of Separation. — As to the validity of deeds for the voluntary separation of husband and wife and their effect upon the maritai rights of the parties, see Dooley v. Baynes, 86 Va. 650, 10 S. E. Rep. 974; Harshberger v. Alger, 31 Gratt. 52; Switzer v. Switzer, 26 Gratt. 574, and note.

A husband and wife separated by agreement, setting apart to the wife one-third of the land descended to her from her father, free from all claims of the husband, but stipulating nothing as to remainder whereon he continued to reside. Held, that he continued to be a tenant by the curtesy. Dooley v. Baynes, 86 Va. 644, 10 S. E. Rep. 974.

B. BY DESERTION. — Where a husband wilfully deserts his wife and such desertion continues until her death, he is thereby barred of all interest in her property as tenant by the curtesy. Va. Code 1887, § 2296; W. Va. Code 1899, ch. 65, § 16, p. 666. As to what constitutes desertion, see Thornburg v. Thornburg, 18 W. Va. 522; Bailey v. Bailey, 21 Gratt. 43.

C. BY antenuptial CONTRACT. — Where a husband by an express contract before and in contemplation of marriage agrees to surrender his right to the enjoyment of the property during coverture and his right to take as survivor, there remains nothing to which his marital right can attach during the coverture, or after the death of the wife. Charles v. Charles, 8 Gratt. 486.

A deed of marriage settlement will not divest the marital rights of the husband to a greater extent than the terms of the instrument clearly require. Mitchell v. Moore, 16 Gratt. 275 ; 2 Min. Inst. (4th Ed.) 126.

D. BY HUSBAND’S JOINING IN WIFE’S CONVEYANCE. — A husband’s right to curtesy in the statutory separate estate of his wife is defeated by the execution of a deed by her in which he united. Bankers’ Loan and Investment Co. v. Blair, 99 Va. 606, 7 Va. Law Reg. 253, 39 S. E. Rep. 231; Campbell v. McBee, 92 Va. 68, 22 S. E. Rep. 807; Breeding v. Davis, 77 Va. 639.

E. BY INSTRUMENT CREATING WIFE’S ESTATE. — The husband has no curtesy in his wife's estate, where it is plainly manifest from the terms of the instrument creating such estate that it was the intention of the settler that the husband should not take curtesy therein. See supra. “Estates Subject to Curtesy.”

F. BY WIFE’S DEVISE. — Prior to the statute, Va. Code 1849, ch. 122, § 3; Va. Code 1887, § 2513, a married woman having an equitable separate estate in fee could not dispose of it by will, unless the power to make such disposition was expressly conferred by the instrument creating the estate, such power not being an incident of the estate. West v. West, 3 Rand. 373.

“But, at the general revision of the laws in 1849, the rule of West v. West was changed, so as to allow a married woman to dispose of her equitable separate fee by will. Code of 1849, ch. 122, sec. 3, which provision was carried, without change, into the present Code. Sec. 2513. The effect of this was to enlarge the powers of the woman and to give her the right to dispose of her equitable separate fee by will, though the power was not expressly conferred (and was not denied) by the instrument creating the estate. Such was the construction placed on the statute in the summary of the law, in Justis v. English, 30 Gratt. at p. 571, and such seems to have been the construction of Judge Lomax also. See 3 Lomax’s Dig. (2d Ed.) p. 11, note 1.” Note to Kiracofe v. Kiracofe, 2 Va. Law Reg. 530.

Under Va. Code 1887, § 2513, a married woman owning an equitable separate estate in fee may, unless prohibited by the instrument creating it, devise the same, and thereby deprive her husband of curtesy therein. The power to make such devise is given by statute and has the same effect as if incorporated into the instrument creating the estate, unless such instrument restrains the power. Kiracofe v. Kiracofe, 93 Va. 591, 25 S. E. Rep. 601, 2 Va. Law Reg. 527; Hutchings v. Commercial Bank, 91 Va. 68, 20 S. E. Rep. 950; Chapman v. Price, 83 Va. 393, 11 S. E. Rep. 879. See article by Professor R. C. Minor, of the University of Virginia, inlVa. Law Reg. 651 et sea., criticising the decisions of the court in Chapman v. Price and Hutchinos v. Commercial Bank.

Although it is provided by W. Va. Code 1887, ch. 78, § 11, that unless the husband shall renounce any provision made for him by the wife’s will he shall have no other interest in her estate than is given him by the will, a failure on his part to renounce .such provision will not deprive him of curtesy, unless he has agreed to accept the provision in lieu thereof, such agreement being the only mode by which curtesy can be barred under W. Va. Code 1887, ch. 65, § 16. Cunningham v. Cunningham, 30 W. Va. 599, 5 S. E. Rep. 139; Beirne v. Von Ahlefeldt, 33 W. Va. 663, 11 S. E. Rep. 46.  