
    Richard C. Beamish, receiver, &c. plaintiff, vs. William Hoyt, defendant.
    1. The estate of tenant by the curtesy as it existed at common law, was not abrogated by the acts of 1848 and 1849, as amended in 1860 and 1862," for the more effectual protection of the property of married women.”
    2. Where a married woman, seised of real estate has issue of the marriage, born alive and dies without disposing of such property, and her husband survives her, he becomes entitled to an estate as tenant by the curtesy, which estate will pass to a receiver of his property appointed in supplementary proceedings, who may by virtue of such receivership recover-the rent due at the time of his appointment, as well as that accruing afterwards.
    (Before Monckiev, Mojíeli and McCura, JJ.)
    Heard April 18, 1864;
    decided April 30, 1864.)
    
      The plaintiff sues as receiver of William A. Hitchcock, a judgment debtor, to recover a quarter’s rent falling due May 1, 1863, of premises 188 West Eleventh street, to which Hitchcock was entitled as tenant by the curtesy. The premises in question were deeded to Mrs. Hitchcock in fee, in 1857 ; she had issue, born alive, which died shortly after; and she died in December, 1862, without making any disposition of the property by deed or will. She left her surviving her husband, the judgment debtor, and her father, the defendant; but left no surviving issue. At the time of her death, John Gr. Gfottisberger was tenant of the premises, under a written lease, which expired on May 1, 1863. On that day, the last quarter’s rent fell due, to wit, #125, which was paid into court. John Bancroft and others recovered a judgment against said Wm. A. Hitchcock and others, March 2, 1858, for #254.30, which is wholly unpaid ; the plaintiff was appointed receiver, in "supplementary proceedings on that judgment, by order dated January 18, 1863, and filed for record in the New York county clerk’s office, February 4, 1863. On the 21st day of May, 1863, the plaintiff, as receiver, commenced this action against G-ottisberger, claiming to collect such rent as part of the estate and interest of William A. Hitchcock, as tenant by the curtesy of the said premises, and as having been transferred to him by force of his appointment as such receiver. The defendant, William Hoyt, who is the father of Frances A. Hitchcock, applied to this court to be substituted, and was substituted as defendant in this action, in the place and stead of John Gfottisberger, claiming that the real estate of which his daughter, Mrs. Hitchcock,. died seised, ascended to him, and that he became seised thereof as an inheritance to him as her father, and that by the laws of this state the estate of a husband, as tenant by the curtesy, had been abolished. All the above facts were admitted, either in the pleadings or at the trial.
    The defendant moved to dismiss the complaint on the grounds:
    1st. That the judgment debtor had no interest in the premises as tenant by the curtesy.
    
      2d. That if he had, the judgment creditor’s remedy was by execution.
    3d. That the receiver could not take any rents accruing after his appointment.
    The motion was denied by the justice, and the defendant excepted.
    The justice directed a verdict for the plaintiff, and that the exceptions be first heard at the general term, and that the judgment, in the meanwhile, be suspended.
    The plaintiff now applied for judgment on the verdict.
    
      Addison Brown, for the plaintiff.
    I. Tenancy by the curtesy is not abolished by the married woman’s acts of 1848, 1849 and 1860, in those lands which she leaves at her death, undisposed of by deed or will.
    (a.) The statute is in derogation of the common law, and therefore must be strictly construed ; above all, it is not to be extended by implication beyond its expressed object—the benefit of married women. It empowers the married woman, personally, to hold, enjoy, and dispose of the property, independently of her husband, by deed or will. If she does not choose to avail herself of this power, the statute has no farther object or effect; the succession devolves, according to all the former rules of law, and the husband takes an estate by the curtesy, the same as before. (Ransom v. Nichols, 22 N. Y. Rep. 110. Hurd v. Cass, 9 Barb. 366. Vallance v. Bausch, 28 id. 633. Moore v. Jackson, N. Y. Supreme Court, 1st dist. gen. term, Feb. 1, 1864.)
    (b.) The language of the statute embraces real and personal property alike ; and the true construction of the statute has been authoritatively settled by the Court of Appeals, in Ransom v. Nichols, (22 N. Y. Rep. 110,) in favor of the husband’s rights, precisely as they before existed, as to property undisposed of by the wife.
    (c.) Where property was given to trustees for the sole and separate use of a married woman, with power of disposition and appointment by deed or will, the husband took an estate by the curtesy in equity, if no disposition of the estate was made by the wife. (1 Cruise Dig. V. 2, § 11. 4 Kent, 30, 31. Morgan v. Morgan, 5 Mad. Ch. 408. Follett v. Tyler, 14 Sim. 125.) In these cases there was no estate whatever in the husband during the wife’s life ; and they furnish a complete refutation of the defendant’s argument of the necessity of a vested initiate estate in the husband during the wife’s life. Such an estate is nowhere claimed to be one of the foundation elements of the husband’s estate after the wife’s death. (Litt. § 35. 4 Kent, 30. 1 Cruise VI. §§ 3, 4.)
    (d.) The statute was intended to do away with the circumlocution of just such settlements as the above, but not to modify the rights of heirs or the regularly succeeding interests after the wife’s death, where she does not avail herself of the powers conferred on her. The analogy is perfect between the cases arising under these statutes and the settlement above described. The purpose of both is the same, and they arc obviously to be determined on the same principles of construction, and with similar results.
    (e.) Since the case of Ransom v. Nichols, we cannot regard the construction of the act as properly an open question. And besides that case, all the decisions are one way and in our favor, except the opinion in Billings v. Baker, which was, in fact, extra judicial, and in no way necessary to the decision of the question before the court. Two of the justices disagreed as to that opinion, though they affirmed the order on other grounds.
    II. The husband, being tenant by the curtesy, had an estate for life in the premises in question ; this estate for life was, on February 4, 1863, transferred to the plaintiff by the order appointing him receiver, filed for record on that day. (Laws 1862, ch. 172, p. 343. Hoffman’s Provisional Remedies, 521. Porter v. Williams, 5 Seld. 148. Edmonston v. McLoud, 16 N. Y. Rep. 543.) The right to receive the accruing rents thenceforward during the debtor’s lifetime passed as an incident to the estate so transferred. Rent is an incident to the reversion, and passes with it. (2 Cruise, 338. Coke Litt. 215, b. 1 Inst. 143 a, 151 b. Demarest v. Willard, 
      
      8 Cowen, 206. Birch v. Wright, 7 T. R. 378. Payn v. Beal, 4 Denio, 405, 410, and cases cited.)
    
    III. The plaintiff should have judgment upon the verdict, with costs.
    
      Robt. D. Holmes, for the defendant.
    I. The plaintiff gave no evidence of any fact showing that he was entitled to recover; the testimony given having been in reference to the appointment of the receiver.
    II. The real estate in question being the sole and separate estate of Mrs. Hitchcock, the same was not liable, nor was any part of it, for the debts of her husband, William A. Hitchcock ; but it is now sought to have it so applied. (Laws of 1860, p. 157, § 1.)
    III. The real estate above referred to, of which Frances A. Hitchcock, the daughter of the defendant, William Hoyt, died seised,, ascended to him, and he, on her death, became seised thereof as an inheritance to him, as her father. By the laws and statutes of this state, the estate of a husband as tenant by the curtesy has been abolished.
    IV. The receiver cannot maintain this action unless the judgment debtor, Hitchcock, previously to the death of Mrs. Hitchcock, had an inchoate right of tenancy by the curtesy. That right is made up of a series of incidents. (Laws of 1862, p. 343.) The necessity for the continuance of this right no longer exist. (Billings v. Baker, 28 Barb. 349.) It was the intention of the legislature to abolish the right, and its action was dictated by enlightenment and progress.
    V. Tenancy by the curtesy is a common law right; it has its inception in marriage and seisin ; it becomes an estate initiate and is born into being at the birth of living issue,- and it becomes matured, or an estate consummate, at the death of the wife. Each of these elements is necessary to its existence; for if there is no estate initiate,- there can be no estate consummate. This being so, what is the effect on the wife’s rights of the statute of 1862 ?
    1. She can sell her real estate; she can enter into any contract with reference to the same with like effect as if she were unmarried.
    2. She can “in like manner enter into such covenant or covenants' for title as are usual in conveyances of real estate when at common law she could not covenant except when joined with her husband.
    3. The statute, in giving her these privileges in contravention of the common law, creates new rights, and makes no distinction, as to their exercise, between her having a child or not having one. The rights conferred are co-existent with her life.
    4. She can devise her separate real estate as if a feme sole. Could she do these things if her huband’s tenancy were a cloud on the title ? If it exists consummate, it is such a cloud initiate.
    VI. It cannot be that if she does not devise nor sell, a right of tenancy by the curtesy comes into being at her death. ■ That would be a new estate ; not created by the common law, because it has no preliminary or inchoate existence.
    1. If the right does not exist at law, it does not exist at all in this state.
    2. It can only exist at law through all the necessary conditions precedent which prevailed previously to the statute. By the statute she “ continues” to hold her real estate as if she were a single woman. This right continues until her grantees or devisees take her lands.
    VII. If a devisor could cut off the right' of tenancy by the curtesy, it surely can be cut off by statute. (Roberts v. Dixwell, 1 Atk. 607. Hearle v. Greenbank, 3 id. 695, cited 28 Barb. 348. See also same case, pp. 349, 350, 351, 356, 365, 370, 378)
    VIII. If the right exists at all, it must exist in all the lands of the wife. It cannot exist as to one parcel and not as to another. It cannot exist and not exist. It cannot, if it has a legal existence, be defeated at the whim, speculative tendencies, necessities, or judgment of the wife. This would be turning each woman in the land, who possessed separate real estate, and was married, into an individual legislator, empowered to annul an existing legal right under the dictates of her sole will, or suffer the right to continue in existence through her passiveness. This would declare a vested right to be suspended by the mere gossamer thread of a woman’s caprice. (Id. p. 368.)
    IX. The right, if it exists, could be assigned by the husband, or it could be taken on execution for his debts. (Id. pp. 345, 348, 362.)
    X. The existence of .the right is inconsistent with the intention of the legislature, and with a fair construction of the language of the act of 1862, and utterly incompatible with its necessary legal effect.
    XI. The case of Vallance v. Bausch, (28 Barb. 633,) upon which the Supreme Court of this district leaned in Moore v. Jackson, was decided previously to the statute of 1862, upon which we rely. The former named case was as to the distribution of personal property, and the opinion as to tenancy by curtesy was obiter dictum.
    
    '• XII. Assuming, however, that William A. Hitchcock had an estate as tenant by the curtesy in the premises, then such estate is a legal estate, and not a mere charge or incumbrance on the land, and can be and could have been sold under an execution issued on the judgment which forms the basis of this action, and hence these proceedings were unnecessary. (Adair v. Lott, 3 Hill, 182. Schermerhorn v. Miller, 2 Cowen, 439.)
    XIII. No receiver can be appointed in proceedings supplementary to execution, of property levyable upon and saleable under execution. The policy of the law is to discourage litigation.
    XIV. The only title or claim of the receiver to the real estate of William A. Hitchcock, (assuming that he has an estate of tenancy by the curtesy,) and to the rents thereof, is by virtue of the order appointing him such receiver. It is insisted that real property does not pass to the receiver by such an order, but that an assignment was necessary, which the court could enforce, and hence the receiver has no title or claim to the real estate of the judgment debtor, nor to the rents thereof, and cannot maintain this action. (Chatauqua Co. Bank v. Risley, 19 N. Y. Rep. 374. Moak, receiver, v. Coats, 33 Barb. 498.)
    XV. The order giving the receiver liberty to sue, was an ex parte order, obtained at chambers, and is not binding on the defendant, It simply gives the receiver leave to sue, but cannot confer on him any power or authority beyond that contained in the order appointing him. And if such last named order does not invest the receiver with, the right to maintain this action, the order giving him liberty to sue cannot do so. The plaintiff was appointed receiver, January 28, 1863, and the order and bond filed February 4,1863, and the rent which this action is brought by the receiver to recover became due May 1, 1863, three months after the appointment of the receiver. A receiver, in supplementary proceedings, can only take the property of the judgment debtor in existence and belonging to him at the time of the appointment of the receiver, and not that which the debtor subsequently acquires, or which subsequently accrues to him \ as, for instance, the salary of an office not yet due. Therefore it is urged that rent not due at the time of the appointment of the receiver cannot be thus reached, (Graff, rec’r, v. Bonnett, N. Y. Transcript of Sept. 7th, 1863, Superior Court, opinion by Justice Bosworth. Campbell v. Genet, 2 Hilton, 295.)
   By the Court,

Monell, J.

Mrs. Hitchcock, the wife of the judgment debtor, was seised of the premises in question in 1857. She had issue of her marriage, born alive, and she died in 1862, without having disposed of her property by will or otherwise. This, by the common law, constituted an estate, as tenant by the curtesy, in her husband, initiate by the marriage, seizin and birth of a child, and consummate by her death.

It is claimed, however, that the acts of 1848,. 1849, as amended in 1860, 1862, for the more effectual protection of the property of married women, have abrogated the common law rule, and deprived the husband of an estate by the curtesy in all cases."

The acts referred to empower a married female to take and hold to her separate use, and convey and devise real and personal property, in the same manner and with like effect as if she were unmarried, and the same is not subject to the disposal of her husband, nor liable for his debts. There is nothing in the statute which in terms takes from the husband this estate by the curtesy. It is, therefore, by implication merely (in giving so hard a construction to the act as to deprive the husband of his estate) that it is sought to give such effect to the statute.

In the construction of all statutes, which are in derogation of a common law right, it is especially important to know the reasons which influenced the law makers, and to give no greater force or effect to the statute than it was clearly intended it should receive.

By the unity of the marriage condition, the personal estate of the wife, and the use of her real property belonged absolutely to her husband, was subject to his control and disposition, and was liable for his debts. This right and power of the husband could not be prevented from attaching by reason of the marriage relation, except by the intervention of trustees. Ante-nuptial contracts were protected and enforced by courts of. equity, and thus a married woman’s property could be secured to her, but in no other way.

The tendency for many years past has been to relax the rigor of the common law, and to remove much of the legal unity heretofore existing in husband and wife. As a further step towards ameliorating the legal condition of a married woman, and in view of the principles which have always governed courts of equity it is presumed that the legislature enacted the law in question. It enables a married woman, notwithstanding her coverture, to hold real and personal estate, and to dispose of it, without the right of interference or control by her husband. The power to hold and enjoy her' estate, and the power to dispose of it during her life, or by will to take effect upon her death, is clearly conferred by the statute, and the husband has no interest which he can claim during the life of "his wife, or which can be subjected to the payment of his debts. The manner of disposition of the estate by the wife is not prescribed by the statute. She may pass it by gift or grant, or by will.

# It cannot be disputed, I think, that it was the obvious intention of the legislature to secure to a married woman the absolute right to enjoy her property, with as absolute a right to dispose of it. The complete exercise of such latter right would necessarily deprive the husband of any estate or interest either during the life or after the death of the wife. But I cannot think it was-the intention to change the laws of inheritance, or the marital rights of the husband, unless it is done by the act of the wife. She has the power to do so. She may prevent the estate from descending to her heirs-at-law; but if she neither conveys during her life, nor devises by will, no one will pretend that the estate would not go, upon her decease, to her heirs-at-law.

An estate by the curtesy can only attach when there is a seisin in the wife of an estate which her issue may by possibility inherit as heir. (4 Kent’s Com. 27.) Hence, the estate being inheritable, the heir may be said to have an interest, which can only be destroyed by the a'ct of the mother. If she omits to act, and leaves the estate undisposed of at her death, it goes to the heir-at-law. Such inevitably being the result, then the acts of 1848-9, have merely conferred a power to hold and dispose, which can be exercised by the wife alone.

The right of the heir to inherit is a common law right, except so far as it has been changed by the statute of descents, and it is idle to suppose that it was intended to take away such right, where the estate was left otherwise undisposed of.

During the life of the wife the husband now has no estate or interest in her lands. Nor has the heir-at-law. Yet the latter may inherit. He inherits because the statute has not changed or annulled the common law rule of descent, and because the estate has not been disposed of by grant or will.

The relative right of the husband under the common law is the same. The estate .was one that the issue of his marriage might by possibilty inherit, and the tendency of the husband was initiate when issue was born. This initiate estate was liable to be defeated by the act of the wife ; but the omission of the wife to act could no more deprive the husband of his curtesy, than the heir of his inheritance.

The title of the act is significant: “An act for the more effectual protection of the property of married women.” It is to protect it in the wife, so that, during" her life, she may not be deprived of it by her husband. The act of 1848 gave no power to dispose by grant or will. The amendment of 1849 added that power. She may grant or devise it. If she does not one or the other, then upon her death all the common law rights attach ; the husband has his curtesy, and the heir-at-law has the fee in remainder.

In short, the acts of 1848-9 have conferred a right and a power upon a married woman, which she did not possess at the common law, which protects her in the enjoyment of her property, and enables her to dispose of it according to her wishes. In the language of Judge Denio, (White v. Wager, 25 N. Y. Rep. 333,) “ by assimilating the case of a wife to that of an unmarried woman, the legislature merely meant to say that she should have the same power as though she was not under the disability of coverture.” I cannot think any thing more was intended, or that it was designed to take from the husband any estate at common law, which the wife did not by her act deprive him of.

It was ingeniously argued by the defendant’s counsel that there could be no initiate estate, and without which there could be no estate at all. The estate was initiated at the birth of a child, as the child at that instant became heir, and might inherit. So the husband’s estate began; But both the inheritance of the child and the estate of the husband were subject to the power of disposition in the wife.

The act makes no distinction between real and personal property, and its protection is extended alike over both. All common law rights, which are not disturbed in respect to personal estate, are necssarily unaffected as regards real, and I am unable, therefore, to discover any difference between this case and Ransom, v. Nichols, (22 N. Y. Rep. 110.) No such distinction is suggested in that case. The plaintiff, as administrator of Mrs. Nichols, sued her husband to recover the amount of a note to Mrs. Nichols, as her separate estate, and which her husband had collected and given up. The court there say, in reference to the acts of 1848-9, that if the wife fails to make any disposition of her property, by sale during her life, or by will, to take effect upon her death, then the rules which prevailed before the statutes were enacted take effect, and the husband has all the rights given him by the common law, It was contended by counsel that in Ransom v. Nichols, the estate being personal, it passed to the husband as administrator under the Revised Statutes. It is immaterial whether the right to take was conferred by statute or by the common law. Either would be sufficient to make it perfect. Besides, in that case, the right of the husband to hold is recognized, either as an incident to the marital relation and flowing from it, or as an incident to his right of administration upon her estate.

In a recently reported case in the Supreme Court, (Jaycox v. Collins, 26 How. Pr. R. 496,) which involved the precise question we are now considering, it was held that the estate "by the curtesy has survived the acts of 1848-9. The review of all the cases in this state is so complete in Jaycox v. Collins that I do not deem it necessary to notice them here, except to say that the clear weight of authority is in favor of sustaining the estate.

My conclusion is, that Mrs. Hitchcock, having died without disposing of the property, her husband became entitled to an estate as tenant by the curtesy, which estate passed to the plaintiff .as receiver under the supplemental proceedings, entitling him to recover the rent due at the period of his appointment, and all rent accruing afterwards, until, his receivership ceases.

There being no other exceptions, I am of opinion that the plaintiff should have judgment upon the verdict.  