Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1878-12-07


-Bzat Single Bod IN a Statute may If
feet
Correspondence of the WAsell,Ag Register.
The head lines with which you crowned thy
unpretending article in your issue cf the OH
instant, promise far more thanI shall be able
/ TO persorm. Indeed, fear that, in what was
simply intended to preface few desultory
discussions Of our existing statutes. have indi-
\ Gated a wider field than I shall be able 70
cover This will be apparent enough to youc
readers bat desire 10 secure the benefit, IN
the outset, Of 4 very distinct disclaimer ofany
I expectation of accomplishing much in the way
Of commentary or suggestion. ,r
Il is. Of course, well known to the profession
that the Cnde of 1898, while mainly based
upon the Virginia Code Of 1860, contains some
very marked innovations upon the law Of the
old State. One Of these propose 10 notice.
as briefly as may be. 10 this article.
Everybody knows what is meant by " Ten
ancy by curtesy" wife holding lands aud
diving, after the birth Of child, the husband
becomes entitled 10 an estate in all such lands,
during life. Such was the law Of Virginia as
il had been, for centuries the law Of England.
/ On the other hand, a husband dying seized of
real estate, his widow wGs entitled TO dover in
only a third of that estate The Code OF West
/ Virgiuia lChaptcr Go, Sections 1910 intend
ins, probably, TO placshusband and wife on
the same footing, provided that the former
should be tenant by curtesy in ono-thIrd part
Of the wifos estate of inheritance in lands,
except where, under the provisions of Sec
\ !. Chap rs, in cases ofintestacy and failure
Of issue, the estate would 80 10 The survivor.
But the legislature lAots 72-73, D. 695l a.
mending the sections in Chap. 60 by striking
ont the Limitation TO one.tbird pant Of NJ
wifc's estatc-thuS restoring the whole princ,-
pic of curtesy, according 20 It's common law
definition and by the acts Of same session
p. 54s-repealed the Inheritance, by survivor
Ship, in case Of the intestacy OF either husband
or wife. The effect Of these amendments OF
the Code Of 1868 was: lst. To leave the law
of do1er as it was, and had been, always 81.
To enlarge the curtesy Of the husband 50 iha,
4 it now includes all the wile's estate Of inher
tancc, instead Of the one-third, as the trainers
Of the Code intended.
have referred to this bjccl with no view
TO it, discussion, now but, simply, to preface
An alluson TO another section Of chapter IS
(which seems 10 be anomalous, and, moreover,
I 10 have history.
I
the Code relate only 20 cases u lntcstacy but
| they contemplate ,he preservation Of the rights
they secure, even whom the disposition Of an
estate has been declared BY vll--thAtis. where
yhcrc is no iptes.acy. In the case OF dowreaS
IL has always been tho law thai, whatever
provision may be made for her, by her huS-
bands will che could ronounoe 10 and takehcr
! dover 10 onc-ihlrd Of bis lands And 20 tho
! law is to-day, Siihout change or innovation.
Bu, the Code Of 1868, designing to place a
surviving husband upon The same iooliog wisA
tho surviving wife, ma1o him, as we have
seen, tenant by cufiesy Of only oue-third Of
her landed, estate. [Why the term tonsn.
by curtesy" was employed, instead Of saying
tenant for life, cannot be explained, except
upon the ground Of general and vicious
fancy for using, 10 legislative acts and deeds
and agreements in pQis, legal phrases, instead
I Of common sense, United States English /
beg you TO pardon the parenthesis
Under this theory Of the Code il became
necessary 10 make provision for the surviving
husband IN case Of the wife dying with a
tcsiimentary disposition Of her estate in plain
words-haying made a will This, the lth
section Of chapter 7S undertakes 10 81. Ia
provides that husband may, 'in like man1cr
TO the widow or dowrcssl renouncc provision
made Tor bin in the will Of bis wife or II no
provision be made for him in the will be shall
have such share Of his wfes estate rs be would
have bad il she had died inicstatc, icdrWg
Children The meaning Of this Is, certainly.
IL he rcnounces the wfes will be becoures %
tenant by curlosy-lhat is-ho obtains q lila
estate ia al The lands Of which she died seized.
have italicised the worlg "lea9ing children.
! presume ev0ry one viii understand that they
simply as5er, TIC principle Of tenancy hy cur
tesy But the Code now before me, ADDISON
rather prcixcs a word II says, without
leaving children" What Is the mohuing Of
this? Simply that the husband would take
nothing; because il there was no issue Of the
/ marriage there could BE- 20 curtcsy
I But, Mr. Editor, here lies The point Of this
whole discussion My edition Of the Colo
contains this significant word without.
many others, and those 10 common use, DO not
/ contain it. When and how Il was dropped
out am not Informed. Maybe Ly accident in
composition \ fanlt Of the proofrcldcr, OF
moro likely by somcbolys direction, which
/ was illegal and unauthorized am told that
T the original rolls, IN charge Of the proper
officer, show that The important word 'wiihour
4 is in the code, as the legislature made it Ito
/ law Of the aod but ! have bad 10 opporiu-
/ nifty 10 verify this statement.
Fortunately, the question as to which is the
/ 'lw is not practical because Tie acts ot ~ 3.
I by an amendment, formal and consequential
/ have rcenacted this section and have adopted
I that version Of the code which leaves out tho
word without" Section II, Chap ~, oftlo
code was amended, simply, 30 substitute tho
I words Clerk Of the Conniy Court ior tho
word " Recorder" The Legislative mind bal
no reference whatever 10 tie subject under
discussion. II seems that the craftsman Of the
act, by mere accident, copied from a spurious
edition II the code 1. c ono published after
tie original form had been made mp and
changed, by some usurpiDg band or tie blum
der Of a proof-rcadcr. Which let some
body explain This fettles tho law but IL
docs not explain. The mystery By which The
promulgated Codo Of 'Cs was made % differ,
iu lis publication, from the original chapters
adopted by tic Legislature.
IL is for toe Legislature Of 1879 10 examine
this question and decide whether the original
rolls or the published book cantains the ex-
preston Of the legislative will upon the subject
referred 10. They are 10 conflict, and although
one is practically operative, j, is importan, 10
know whether il was not, originally. the pnr-
pose and is not now, The logical intention of
our system Of jufispruience 10 give fe
estate 10 lands W the husband, ss tenant by
cur,esy, 20 called, whether hls vic die .etiafo