Billings agt. Baker and others. ing the majesty of the law-sworn to declare the truth as in your calm judgments, in your hearts, you find it. With no other guide, with no responsibility for the correctness of the rules given to you by the court, with no responsibility for what the law may make the consequences of your finding, you will proceed to the discharge of your duty impartially, honestly, fearlessly. Face it like every other duty. So meet it that hereafter your own consciences shall not reproach you with having been either unnecessarily severe or criminally weak. SUPREME COURT. AMY BILLINGS agt. CLAUDIUS BAKER, PERRY P. BILLINGS and others. The acts of 1848 and 1849, "for the protection of estates of married women," entirely abrogate the existence of prospective tenancy by the curtesy, and were intended to do so. (See Hurd agt. Cass, 9 Barb. 366; and Clark agt. Clark, 24 Barb. 581, adverse.) The effect of these statutes is, that the useless and ridiculous fiction of "tenancy by the curtesy of England," is abrogated, and no longer remains to disfigure the system of common law, or the republican institutions of this state. Saratoga Special Term, March, 1858. MOTION to amend a complaint by striking out the name of Perry P. Billings, as a defendant. The action is for partition of real estate, which came to the plaintiff by inheritance since the act of 1848, amended in 1849, "for the more effectual protection of the property of married women." Perry P. Billings is the husband of the plaintiff, and was made a defendant under the impression that as the husband of the plaintiff, and by the birth of issue, he had an inchoate interest, as tenant by the curtesy. On the trial before the referee, one of the defendants was sworn as a witness, on his own behalf. The plaintiff was Billings agt. Baker and others. then advised that her testimony became important in the action in her own behalf, but that she was an incompetent witness by reason of her husband's being a party. Perry P. Billings then conveyed or released all his interest in the said estate, to a third party, "and especially his interest, present and future," as tenant by the curtesy, as husband of Amy Billings, so that he be forever barred of all claim as such tenant. Such third person then released and conveyed all that interest to the plaintiff. She then makes this motion to enable her to be a witness in her own behalf. H. W. MERRILL, for plaintiff. POTTER, Justice. The facts set forth in the moving affidavits, sufficiently show that it would be in furtherance of justice to grant this motion; if the interest of the defendant Perry P. Billings, does not make him a necessary party to the action. If the husband has either a present or a prospective interest, he is a proper and necessary party to the action, and the motion could not be granted. That the husband was in such case at common law, tenant by the curtesy initiate, is certain, and that he is such in regard to all estate owned, or acquired by the wife prior to the statutes of 1848 and 1849, if the marriage was also prior to that time, is equally certain. If those acts have by necessary implication abrogated prospective tenancy by the curtesy, it no longer exists. Tenancy by the curtesy, is, "when a man marries a woman seized at any time during the coverture of an estate of inheritance, in severalty, in coparcenary, or in common, and hath issue by her, born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life, by the curtesy of England." (4 Kent Com. 27.) The Revised Statutes (1 Rev. Stat. 754, § 20) expressly recognize the existence of this estate, and provide that, "the estate of a husband, as tenant by the curtesy, shall not be affected by any of the provisions of this chapter." Billings agt. Baker and others. Four things are necessary to constitute this estate, viz: 1st. Marriage. 2d. Actual seizin of the wife. 3d. Issue born alive; and 4th. Death of the wife. (4 Kent Com. 29.) The common law vested this estate in the husband immediately upon the birth of a child. (2 Black. Com. 127.) If the reasons for the introduction of this peculiar feature of the common law called "tenancy by the curtesy," in estates in land, have ceased to exist; if in practice the law fails to be useful; or if it had become an evil, or is inapplicable to our American system of law; it presented a reason, perhaps a necessity, for a remedial act to abrogate it-and such remedial statute must then be construed with reference to a condition of things thus presented. One of the reasons for the introduction of this estate into the English system, was that the husband being the natural guardian of his child, was entitled to the profits of the land in order to maintain the child; but a more prominent and important idea of the system was, the reason that then existed in England, in regard to all estates in land under the feudal law, to wit: that the husband having become dignified by having an interest in lands, was bound to do homage to his superior lord; and the interest being once vested in him, it was the policy of the feudal system not to suffer it to determine during the life of the husband, as otherwise the lord might lose the homage that was his due from the land. To this estate the husband never had any natural right. (Bac. Abr. Tenant by the Curtesy.) Sir J. JEKYL says: "This estate has no moral foundation to support it." (Green. Cruise, tit. 5, §3.) Crabb, an English writer, says: "The term curtesy is derived from courtesie, latin curialitas; to signify suavity or urbanity, to denote that the custom sprung from favor to the husband, rather than from any right." By thus becoming the vassal or tenant of his superior lord, he was permitted "by the curtesy of England," to attend his lord's court, or curtis, (as it was called,) and to do him homage, by reason of having become the husband of a wife who had died possessed of an estate in lands after issue born. Such were the reasons for the introduction of such a title to lands Billings agt. Baker and others. into the law of England. This common law was adopted into our system in this state, by the 35th section of the constitution of 1777. This examination of its history, and the reasons of its adoption, seemed to be necessary in order to ascertain—first, whether such reasons continue to exist; and next, the applicability of such a law to our own local system; and lastly, whether these causes may not have had an influence in determining the intent of the legislature, either in continuing or in abrogating this feature of law in regard to real estate, by the acts of 1848 and 1849, above referred to. There is no doubt that the legislature had the power either to modify or abrogate this estate at their pleasure, if it was regarded as public policy so to do. It was so held in Sleight agt. Reed, (18 Barb. 165,) and Moore agt. Mayor of New-York, (4 Seld. 114.) "It is not," says DENIO, J., "a part of the mar riage contract which cannot be affected or impaired by statute, but it stands on the foundation of positive law, as one of the institutions of the country." From this, we see, 1st. That the legislature had power to abrogate this estate as to all prospective cases. 2d. That every reason for the introduction of this estate into our system of law, except only that of the maintenance and support of the children, is entirely inapplicable to the public policy of this country, and to the institutions of this state. And 3d. That the provisions contained in those acts, were intended to introduce a most important, if not an entire change in the existing law of this state in that particular. The question then is, have future estates of tenancy by the curtesy, been abrogated by those acts? The answer to this question depends mainly upon the construction to be given to (what seems to be) the very plain language of the act. In determining such construction, we must be guided by those sound rules of interpretation, which long experience and the settled wisdom of the courts have uniformly approved. This, as has been said, is to be regarded as a remedial statute, and its language is to be so construed as to give effect to the end the legislature had in view, and if possible to prevent a failure of the remedy intended. Billings agt. Baker and others. (1 Kent Com. 465.) What then, was the mischief felt, that was the occasion of, or created the necessity for this statute? What was the object intended to be effected by it? Experi ence had shown, that the only sensible reason for the introduc tion of this tenure into real estates, to wit: the maintenance of the children, had sadly failed of its object. The estate was not only alienable, but was also liable to the payment of the husband's debts. And it was found that in too large a proportion of cases, worthless, spendthrift and intemperate husbands, instead of using the estates intended for the support, maintenance and education of their children, exhausted them upon themselves, during their own lives, too frequently leaving the children objects of public care. What was the remedy? Let then this statute first speak for itself. The first section of the act of 1848, provides for the estates of females who may thereafter marry. It provides that her estate, real and personal, and the rents, issues and profits thereof, shall not be subject to the dispo sal of her (future) husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female. The second section was intended to carry out the same provision as the first, in relation to estates of married women. It has been already judicially passed upon in various reported decisions; but its application to the property of the wife who was married at the time of the passage of the above act, is not a question necessary to be examined here, except so far as it goes to show the intent of the legislature. The third section as amended in 1849, provides that 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 like effect as if she was unmarried, and the same shall not be subject to the disposal of her husband, nor liable for his debts. The next section of the act of 1849, authorizes trustees who hold estates in trust for married women, to convey such estate VOL. XV. 34 |