Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1881-01-20
COURT or arp Fans.
Decistbns Rendered thia Morning
ghe Married voInau's LaY-De-
cisIon la the Cantagn- -CFOasdate
Case Reseryed Till April.

Bhe Married NoDau7s EhW-De-
cEsIon In The CantuIn-CFOasdate
Case Reserved It'll April.
Special Correspondence of Every Evening
DoyER. Jar "a --Iu the Oourt OF Errors
and Appesis, this morning decisions wore
rendered in six css.s, two of which
| CvhGmpsoG vB Thompson ard Egana VS..
Lobdeil) were argued before this term.
Four OF them were appeals from the
! Ohapeallor's decree, in all OF which the
decree was affirmed.
Abel S Small VI. Winjock Fl. Iollina,
two cases; appeals from Obancery, frcm
Sussex cou ~. Dacr5s OF the Chancellor
affirmed. Moore snd Cullen for nppsl-
lapts; Layton for respondent.
Winfield e. Collins VS.. Abel s. Small.
Gross appeal to the case above stated that
case having been decided in favor Of the
appellant in this case this appeal was
dismissed. layton FOR plaintiff
William IT, Thompson, appellant. VS..
Charles Jones ct al respondents This is
the Thompson We. Thompson deed oase).
Appeal from ChsneeTy in New Castle
county. Decree affirmed. Whiteley for
plaintiff; Bates for respondent.
Laura Evans vs. William w. Lnbdell
Question reserved from the Superior Court
of New Csstle county. Judgment for
| appellant Lore for appellant,
Thomas p Walls VS. Henry o. Brrtell.
Appeal from Ohanoery, from Suasex
county. Decree affirmed. Fulton for
plaintiff; Robinson for respondent.
Court then adjourned to meet again
April 27th, OF which time decisions in
other cases will be rendered 20 as to admit
of their being retired, il so decreed, by
the next May term of the Superior Court
Among these cases in which decision ia
thus reserved is the Oroasdale- rsntum
motion for new trial, on grounds which
have been previously reported. ..=-
THE THOMPSON CASE.
Iu the above mentioned case Of William
H. Thompson, appellant, against Charles
Jones ct al, respondents; being sn appeal
from the Court of Chsucery of New Castle
| county-the cause of appeal being that
the Ohaucellor had allowed the record to
be amended 30 as to make next friend
of the non c0mpoS party to sue for him
in lieu of the Attorney General. aud to
change the proceedings from an informa-
| tion into 0 bill. TIE Court, Ohief Justice
Comegys delivering the opinion, efter
hearing the question fully argued by
Whiteley, for the appellant, and Bates for
the respondent, affirmed the decree of the
| Chancellor, deciding also that no appeal
lies from tina Chancellor except in cases Of
| final or iuteTlocutory DEGREES, and that an
order or authority given by him to make
amendments to bill, or refusing it, is not
an interlocutury decree. For the defni.
ton, or description of an interlocutory
| decree, the Chief Justice referred to Har-
rison's Chaneery, Vol. /.
The property at issue is y farm in
| Brandywina hundred valued at about
| $50, 900. the deed for which was set aside
by the Chancellor on the ground OF mental
incapacity of the grantor.
! woMAS's LEGAL RIGHTS.
In the Laura Evans case, Judge Wales
delivered the opinion of the court, saying /:
| The question for decision is-Does this
| Judgment constitute a lieu on the interest Of
| the husband of the plaintiff in her real estate,
| 30 that the defendant Lobdell, cannot receive
a title from him free of encumbrances?
| To answer this question we must inquire
What il the nature of the husbands interest,
| if any, i'll this property
The statute known as the Married Woman's
act which was passed prior to the acquisition
| of this property by the plaintiff, expressly
exempts the real and personal property of
the wife from the control Of husband and
from liability Tor his deDts.
The first section of the act of 1875 provides
''that the real and personal property of any
married woman, which has been heretofore
acquired, is now held, or which she may here
after acquire i'll any manner whatsoever,
from any person other than her husband,
shall be her sole and separate property and
the rents, issues and profits thereof shall not
be subject to the disposal Of her husband nor
liable for his debts p" (Chapter 1861 Laws OF
| Delaware volume IA J
There is saving, in the fourth section OF
the act of 1873. of the husbands right at
tenant by the curtesy, where lie survives the
wife and she dies ntestate being seized ut the
time of her death OF real properly and having
had issue born alive during coyerture.
The common law definition OF this estate ot
tenancy by the curtesy is Il familiar one. II
depends upon first marriage second actua
seizure of the wife during cuyerturo ; third
issue born alive ; fourth, death of the wife
with the husband surviving, The estate was
said to be vested Immediately upon the birtl
of isSue.
Now, does the statute devise the husband
this right during the lito of the Wife, VIZ
think it does, US conteuded by the plaiullifl
counsel the act is remedial ore and shal
be Literally construed, in order to carry on
the object of its enactment, which was to say,
the wite's property from the dominion of he
husband and from sale, execution or attach
ment for his debts. and TO hold that it cauno
be voluntarily said and conveyed by then
would be to virtually annul and defeat tina
purpose.
Such construction aud Interpretation woult
in effect subject the wifes property to th(
control of the husband, and make it liable 10
his debts, contrary to the words and spirit o
the act. The act destroys the tenancy by TIL
curtesy initiate, but does not take away tn
contingent estate in whatever real estate tn
wife may be seized Of at the time Of he
death. In other words. il mudities the tenanc
by the curtesy during coyerture, but does no
destroy it after the death of the wife. Ih
right Of the husband lis made contingent upo
the soizin of the wife III the tiue Of he
death.
The estate does not become absolutely fiXe
and vested in the husband by the birth o
issue, as al common law: the right only be
comes vested when the wife dies seized. II
! subject to be defeated hy the joint conveyanc
of the husband and wife. During her life til
husband has no interest or estate III be
lands She holds them as her sole and separat
property and they are not subject to the dls
posal of her husband nor liable for her debt,
She can sell them, with Lis assent, and if sh
so sells and conveys them she conveys ther
AS she holds Them free from any estate O
| interest of her husband
This is the first decision under this act an
, it is of public interest, showing, as it d0e'
the latitude placed upon its provisions by til
Court OF highest resort in the state.