Property held in tenancy by entireties, and likewise community property, cannot be partitioned, though, after the termination of the marriage relation by divorce, and the consequent end of that peculiar form of tenancy, partition may be obtained.165 165 Freeman, Cotenancy, §§ 64, 444, 445; Kirkwood v. Domnau, 30 Tex. 645, 26 Am. St. Rep. 770; Russell v. Russell, 122 Mo. 235, 43 Am. St. Rep. 581. (408) CHAPTER VIII. ESTATES AND INTERESTS ARISING FROM MARRIAGE I. THE HUSBAND'S RIGHTS DURING COVERTURE. § 176. Rights at common law. 177. Equitable modifications of husband's rights. [I. DOWER. 179. Necessity of marriage. 180. Seisin of the husband. 181. Duration of the seisin-Transitory seisin. 186. Dower in future estates. 187. Dower in land jointly owned. 188. Estoppel to deny husband's title. 208. Character of the wife's estate or interest. 209. Modes of excluding curtesy. 210. Curtesy initiate. 211. Curtesy consummate. 212. Statutes altering or abolishing curtesy. IV. HOMESTEAD RIGHTS. 213. General character of the rights. 214. The wife's rights during coverture. 215. Rights of surviving consort. 216. Rights of children. I. THE HUSBAND'S RIghts during COVERTURE At common law, the husband has an estate in his wife's freehold property other than future estates, which continues during their joint lives. Of the wife's chattels real, the husband has absolute control, with the right to dispose of them during his life, and they go to him if he survives her, while, if not so disposed of by him, they go to her on his death. In equity, the husband's rights in his wife's property are sometimes modified, and they may be entirely excluded by provi sions to that effect in the instrument transferring the property to the wife. By statute in most, if not all, of the states, the husband's common-law rights in the wife's property are greatly modified or entirely excluded. § 176. Rights at common law. At common law, in those things in which the wife has a freehold estate, the husband has, by right of marriage, an estate carved out of his wife's estate, which may endure until his or her death, and which is therefore itself a freehold estate.1 He is entitled to all the rents and profits, free from 1 Co. Litt. 351a; 1 Roper, Husb. & Wife, 3; 2 Kent, Comm. 130; Babb v. Perley, 1 Me. 6: Finch's Cas. 27; Payne v. Parker, 10 Me. any claim by the wife.2 concurrence of his wife, his debts.* He can alien the estate without the and it is liable to execution for The husband is not, however, considered as having the sole seisin, but this is in him and his wife jointly, in right of his wife, and accordingly they must sue jointly for any injury to the inheritance. But since the husband alone is interested in the rents and profits, he can sue alone for them, or for any injury to them." This estate of the husband continues till the termination of coverture by his death or that of his wife, or by divorce, 181, 25 Am. Dec. 221; Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 165; Eaton v. Whitaker, 18 Conn. 222, 44 Am. Dec. 586; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618; Elliott v. Teal, 5 Sawy. 249, Fed. Cas. No. 4,396. He has such an estate, even in land assigned to her for dower in the estate of a previous husband, she having a freehold interest therein. Neil v. Johnson, 11 Ala. 615; Barber v. Root, 10 Mass. 260; Van Note v. Downey, 28 N. J. Law, 219; Bachman v. Chrisman, 23 Pa. St. 162. Williams, Real Prop. 223; Nunn's Adm'r v. Givhan's Adm'r, 45 Ala. 370; Royston v. Royston, 21 Ga. 161; Clapp v. Inhabitants of Stoughton, 10 Pick. (Mass.) 463; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236. Co. Litt. 325b, Butler's note, 280; Robertson v. Norris, 11 Q. B. 916; Eaton v. Whitaker, 18 Conn. 222, 44 Am. Dec. 586; Trask v. Patterson, 29 Me. 499; Butterfield v. Beall, 3 Ind. 203; Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Jones v. Freed, 42 Ark. 357. 42 Kent, Comm. 131; Litchfield v. Cudworth, 15 Pick. (Mass.) 23; Nicholls v. O'Neill, 10 N. J. Eq. 90; Beale v. Knowles, 45 Me. 479; Cheek v. Waldrum, 25 Ala. 152. 1 Wm. Saund. 253, note; Polyblank v. Hawkins, 1 Doug. 329; Nicholls v. O'Neill, 10 N. J. Eq. 88; Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 161; Wyatt v. Simpson, 8 W. Va. 394. 2 Kent, Comm. 131; Decker v. Livingston, 15 Johns. (N. Y.) 479; Dold's Trustee v. Geiger's Adm'r, 2 Grat. (Va.) 98; Mattocks v. Stearns, 9 Vt. 326; Fairchild v. Chastelleux, 1 Pa. St. 176; Clapp ▼. Inhabitants of Stoughton, 10 Pick. (Mass.) 463. 2 Kent, Comm. 130; Robertson v. Norris, 11 Q. B. 916; Payne v. or until there is issue of the marriage born alive, when this estate in right of the wife gives place to an estate of curtesy initiate in the husband's own right. If the wife survive her husband, her estate of inheritance remains to her and her heirs, after his death, unaffected by any alienation made by him, or debts which he may have incurred, since he has no power, by his acts, to affect more than his own interest.10 In chattels real of wife. The wife's chattels real become, at common law, the property of the husband for certain purposes. He may dispose of them during his lifetime without her cousent, they are liable for his debts, and the rents and profits belong to him, and after her death he takes them absolutely. If she survive him, and he has not disposed of them during his life, they belong to her.11 He cannot dispose of them by will, as he can in the case of personal chattels.12 177. Equitable modifications of husband's rights. At an early day, courts of equity introduced the doctrine Parker, 10 Me. 181, 25 Am. Dec. 221; Evans v. Kingsberry, 2 Rand. (Va.) 120, 14 Am. Dec. 779. 8 Wright v. Wright's Lessee, 2 Md. 429, 56 Am. Dec. 723; Barber v. Root, 10 Mass. 260; Mattocks v. Stearns, 9 Vt. 326; Oldham v. Henderson, 5 Dana (Ky.) 254. Roper, Husband & Wife, 3; 2 Pollock & Maitland, Hist. Eng. Law, 405; 2 Kent, Comm. 130; Lancaster County Bank v. Stauffer, 10 Pa. St. 398. 10 Williams, Real Prop. 227; 1 Roper, Husband & Wife, 56; Bruce v. Wood, 1 Metc. (Mass.) 542; Mellus v. Snowman, 21 Me. 201: Rogers v. Brooks, 30 Ark. 612; Evans v. Kingsberry, 2 Rand. (Va.) 120, 14 Am. Dec. 779; Stroebe v. Fehl, 22 Wis. 337. 11 Co. Litt. 46b, 300a, 351a; 2 Bl. Comm. 434; 2 Kent, Comm. 134; Moody v. Matthews, 7 Ves. 174; Mitford v. Mitford, 9 Ves. 99; Lawes v. Lumpkins, 18 Md. 334; Meriwether v. Booker, 5 Litt. (Ky.) 254; Allen v. Hooper, 50 Me. 371; Barron v. Barron, 24 Vt. 375, 390; Riley's Adm'r v. Riley, 19 N. J. Eq. 229. 12 Co. Litt. 351a; 2 Bl. Comm. 434; 2 Kent, Comm. 134. |