Gresham v. King ( 1888 )

Campbell, J.,

delivered the opinion of the Court.

There is nothing to indicate a purpose to apply Section 1197 of the Code to conveyances or devises made to husband and wife before its existence, and, according to the settled rule, a retroactive effect will not be given to it, if the legislature had the power to affect estates created before the act was passed, as to which it is unnecessary to decide. The question involved is not affected in any manner by Section 1167 of the Code. It completely removes the common law disabilities of married women; but it was not because of her want of capacity as a married woman that she could not dispose of an estate held by entirety. The husband could not dispose of it. either. 'The curious incidents of such an estate sprang from its peculiarity, arising from the unity of husband and wife, from which it was said that each was seized of the whole estate, and it required the act of both conjointly to dispose of it.

The estate of King and wife, held by entireties when the Code of 1880 became operative, on the death of Mrs. King, in 1881, vested in King as survivor. This was an incident of the estate, not affected by any statute to hinder its operation.

We agree with the Chancellor in his refusal to decree a specific performance of the contract alleged in the cross-bill.

Affirmed. ■