The eastern clarion., 1859-04-13

F. b. RYAN, ys. John q. 4. Freeman, ct al
This action was brought in the Circuit Court ofMar-
shall hv the defendants 10 recover certain
tract Dland which they asserted title as the heirs at
aw OF Mrs Ryan, deceased, the late wife Of T. b. Ry-
special verdict winch set forth the facts Of the
case. upon which Judgment was entered for the
plaintiffs, and the defendants prosecuted tins wrt Of
error.
The facts stated in the special verdict in effect
as follows: Mr-. Ryan. under whom the defendants
I'M error claim and F. b. RYAN. the defendant below.
mtermarued in lS55. Mrs. Ryan died in April 1S56.-
Snc died iutcstate childless and without ever hav-
ng had issue Of the marriage, born alive, and capa-
he Of mheuung. When she died she was selzed and
possessed fee simple OF the land IN controversy
The defendants IN error were the brothers and SIS
tiers of the d.cedent and such were her heirs at
law aud the piunuh M error NIs IN possession oi 'le
premises when the SUIT was instituted.
Upon these facts it insisted that the plaintiff in
error, 10y operation Of the statute was vested with
fr estate IN the land IN controversy, and hence. that
Judgment should have been rendered Tor nm IN the
court below.
Tenancy by the courtesy occurs when man mar
ne woman who seized at any time during cover
turc. 81 estate OF inheritance ana has PS heI ssnc
horn alive and which was capable OF nhertnE the
same estate aS her heir BY the common law iour
things requisite, to the existence Of TINS estate,
to-wIt: marriage. actual seizure ot the Wlei>suc ana
death Of the WIte,-4 Kent =.
Here there was no issue born 81 me marriage,
which was capable Of nhcutng the lana as the helT
Of Nr~. Ryan IL = not therefore 10 be coIiotested
that according to the common law the plalntu m
error was not entitled to free hold estate IN the land
.- tenant ly the curte-y.
IS,i II j. Gontcpded that the Statute has enlarged
tf rights of the husband, m regard to the lands and
t.ur,pts Of the wife of which She shall die seized
In fee simple. That t the manifest intention Of
the legislature, the enactment Of the statutes IN re-
gard 70 the rights "i married women to give TO the
husband nal cases estate Of free hold analogous
TO the tenancy by the curtcsy in the lands OF which,
the wife shall die seized Ia fee simple
This position and the argument IN support Of it.
seem 70 be equally unfoundcd.
The sixth section Of the act Of the 2Sth Of Febru-
ary 1870 contains the ioli0Whg provision to-Wt II
any married woman shall die seized and possessed Of
reil estate freehold luf nheranee) acquired I'M
der the proyls Of the act, Uhe married wOman's
law 10 which this ! AN amendment her husband
surviving her, shall be entitled, 10 tenancy Of the
same by curtcsy, ~ in other cases.
It's uponthis provision and what IL assumed to be
the genera. spirit Of the above and Of the act Of
1883 Of which II j. an endment that the assumption
aud argument Of counsel are based. Il is said that
without the insertion If the provision above quoted
the husband would have been entitled to curtesy on
precisely the same conditions that he - now entitled
TO IT, Il this provision be held TO have no other object
Or effect than 20 declare what the existing Law was on
the subject That upon such a construction. the pro
vision unmeaning and useless whchis not to be ol
Grated lfune be adopted which VIII give to the pro
vision an operation and effect consistent with the oh
icct~ Of the Legislation on the subject And hence It Is
concnded that the provision l. not 70 be construed as
defining the conditions upon which the surviving hus-
band be entitled TO his curesy in the real property
acquired by the wife under the provisions OF the first
section Of the act Of 1889. but defining the quality
and quantity Of the estate 20 which he shall be entitled
the Wifes lands IN the event of hls surviving her
In other words, that was the intention OF the Legis
ature 20 give the surviving husband in all eases. AN
interest IN the lands Of which the wife should die
seized. in fee simple. similar in quality and quaint
" to the held 10y tenant. by the curtesy.-
And in effect to abolish the common law, requisite o
birth of issue Of the marriage which was capable Of
mheritng And further. that this construction Is Just
aud reasonable in itself the husband would there
hy TO some extent. he indemnhed for the depriyinC
him of the usufuct of the land during coverture and
s IN wise opposed To- the policy Of the acts for the
protection and preservation Of the rights OF married
women.
But the intention Of the Legislature is too evident
the language Is too PLAIN to admit Of this construc
uon. We are bound 20 presume that the Legislature
understood the character and nature Of tenancy ny
the curtesy and the conditions on which II depended
That the terms employed were used understandingly
in their appropriate legal sense. When, therefore
the Legislature declared that the surviving husband
should be entitled TO curtesy IN the lands Of the de
ceased wife, acquired under the provisions Of tn,
first section Of the Of 1882 It had in view all of tn,
conditions on which al common law tenancy by eur
esy depended. Ii il had been its intention 10 atacl
70 the fact Of marriage the right 10 life estate in th'
husband 10 the lands of the wife IN the event OF h
surviving her il would have been quite as easy {,
have said 30, TO have adopted the language whcl
Further, femme covert. under the first section o
the act of 1859 has right acquire real property b!
devise. gift purchase, "in her own name, and a.
her own property"
IT. therefore, according 10 the true construction o
this section, the real estate acquired under its provs
IONS by married woman. was held ny her sepaTatl