
    Chemung Special Term,
    September, 1850.
    
      Mason, Justice.
    Hurd vs. Cass.
    The act of April 7,1848, for the more eifectual protection of the property of married women, was not intended to deprive the husband of his estate as tenant by the curtesy in his wife’s real estate," in case of his surviving her.
    Since that statute, the husband, during coverture, has no interest in the wife’s lands which he can use or transfer, or which his creditors can in any manner reach.
    . The ¿state is vested in the wife, during coverture, and upon her dc'alh after issue 'bom, leaving her husband surviving, it descends to her heirs, charged with his rights as tenant by the curtesy. If there has been no issue of the marriage, then the estate becomes perfect and absolute in her heirs.
    This was an action of ejectment, to recover the possession of the premises described in the complaint. On the 20th day of November, 1845, the plaintiff was married to Caroline A. Hurd. On the 20th day of December, 1849, Samuel A. Campbell and wife being seised in fee of the premises in question, conveyed the same by deed to the said Caroline A. the wife of the plaintiff. She departed this life on the 18th day of April, 1850, leaving the plaintiff, her husband, and an infant daughter, the fruit of said marriage, her surviving. This infant daughter was born on the 10th day of May, 1849, and is still living. The jury found a verdict for the plaintiff, subject to the opinion of the court.
    
      Love & Freer, for the plaintiff.
    
      E. & G. E. Quin, for the defendant.
   Masont, J.

The third section of the act of April 7th, 1848, entitled “An act for the more effectual protection of the property of married women,” as amended by the act of April 11th, 1849, reads as follows: “ Any married female may take by inheritance, or by gift, grant, devise or bequest from any person other than her husband, and hold to her sole and separate use, and convey and devise', real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner, and with the like effect, as if she were unmarried. And the same shall not be subject to the disposal of her husband, nor be liable for his debts.” This statute, undoubtedly, was intended to vest the title to real estate conveyed to the wife during coverture, in her, and to secure it to her sole and separate use, beyond the control of her husband or his creditors. And where the intention of the legislature is apparent it is the duty of the courts to see that the design and object of the statute is not eluded by construction, but on the contrary, is permitted to have its full effect and operation. (15 John. 358.) There is no doubt, in my mind, that the legislature intended by this statute to allow a feme covert to take by inheritance or gift, grant, devise or bequest, from any person other than her husband, and to hold to her sole and Separate use, both real and personal property, or any interest therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were a feme sole. There is no doubt that this statute was intended thus to authorize her to take and hold property, and that it was intended also to authorize her to take and hold the same to her sole and separate use, free from all liability for her husband’s debts, and free from his disposal; investing the wife also with full power and authority to convey the same by deed or devise. A much more difficult question, however, is presented by the case under consideration; and that is whether the statute above referred to cuts off, if I may be allowed the expression, that estate which, upon the principles of the common law, the husband acquired in the wife’s lands at her death where there was a child born alive, of the marriage, and which estate is by the common law called a tenancy by the curtesy, and which is in fact a life estate in the husband, initiate on issue born, and consummate on the death of the wife. (4 Kent’s Com. 29.) I feel constrained to say, after the most careful examination I have been able to bestow on this statute, that it does not extend to the case under consideration. The statute allows the wife"to take and hold to her separate use real as well as personal property, and authorizes her to convey the same, or to dispose of it by a valid will executed in conformity to our statute. But the statute was never intended to interfere with the laws of descent in regard to real estate. The design and object of the statute is fully answered by allowing the wife to take and hold real estate as a feme sole to her sole and separate use, and to convey the same by deed, or dispose of it by a valid devise. And the rule of construction is a familiar one, that it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. (1 Kent’s Com. 464, 3d ed,.)

The view which I have taken of this statute is greatly strengthened by the principles of the common law. Lord Hardwick decided, in the case of Roberts v. Dixwell, (1 Atk. 607,) that the husband might have his curtesy in an estate devised to the wife for her separate use. And although there was at one time some conflict in the adjudications upon the subject, the law is well settled at the present day that the husband is to he considered tenant by the curtesy if the wife has an equitable estate of inheritance, notwithstanding the rents and profits are to be paid to her separate use during coverture. The receipt of the rents and profits is a sufficient seisin in the wife. (Pill v. Jackson, 3 Bro. 51. Morgan v. Morgan, 3 Madd. 248. 4 Kent's Com. 31, 3d ed.) And it is now settled in equity that the husband may be a tenant by the curtesy of an equity of redemption and of lands of which the wife had only a seisin in equity, as a cestui que trust. (4 Kent’s Com. 30.) It is contended, however, that this construction of the statute under consideration is not admissible, as the latter clause of the section provides that the property so held by a feme covert shall not he subject to the disposal of her husband nor he liable for his debts.” This clause of the statute does not conflict with the views above expressed, and it should be borne in mind that this statute was passed to protect the property of married women to their separate use during coverture, investing the wife also with power to convey the same by deed or devise. At common law, also, the husband, upon the marriage, became seised of a freehold estate, jure uxoris, in the wife’s lands, and took the rents and profits thereof during then-joint lives. (2 Kent’s Com. 130, 3d ed.) This was such an interest as the wife might transfer, or as was liable to be sold for his debts; and it was probably this interest of the husband in the wife’s lands to which this clause of the statute has reference, and not to an interest which alone vests and becomes consummated on the death of the wife, where there is a child horn alive of the marriage. All that this statute was ever intended to accomplish was to protect the property in the wife during coverture, and to empower her to convey the same by deed or devise. The statute was never intended to change the direction of the real estate upon the wife’s death, unless she herself had changed it by a valid devise. The laws of descent remain unchanged by its enactments; and the real estate, by the law of descent, is cast the same as. if this statute had never been passed. The statute cuts off most emphatically all that freehold estate which the husband acquired jure uxoris during coverture, and which, as we have said, was a freehold estate during their joint lives; and the husband has now, during coverture, no interest in the wife’s lands Avhich he can use or transfer, or Avhich his creditors can in any manner reach. The estate is vested in the wife during coverture, and upon her death descends to her heirs charged Avith the incumbrance of the husband’s rights as tenant by the curtesy if there has been a child born alive of the marriage; if none, then the estate becomes perfect and absolute' in her heirs. I am of opinion, therefore, for the reasons above stated, that the plaintiff in the case under consideration is to be regarded as tenant by the curtesy of the lands described in the complaint; because the statute referred to does not extend to the case. Consequently it is not necessary to consider the questions raised as to the validity of this statute. There is no force in the objection raised by the defendant’s counsel, that the defendant’s tenancy was not terminated at the time this suit Avas commenced. The defendant Avas a tenant at will. (2 Cowen, 169. 11 Wend. 616.) And this tenancy Avas terminated by a month’s notice to quit, under the statute. (1 R. S. 745, §§ 7, 8, 9.) There must be a judgment for the plaintiff that he recover the possession of the premises described in the complaint, with costs.  