Diver v. Diver , 1867 Pa. LEXIS 247 ( 1867 )

The opinion of the court was delivered, November 4th 1867, by

Strong, J.

It is conceded (unless the Act of April 11th 1848, commonly called “ The Married Woman’s Act,” has changed the rule) that under a deed to husband and wife, the grantees do not take by moieties, but .each becomes seised of the entirety, holding “per tout et no.n per my.” This is a necessary consequence of the legal doctrine that a husband and wife are one person. Hence, on the death of either, the whole estate remains in the survivor, nothing descending to the heirs of the decedent. Nor does the Act of March 31st 1812, which abolished survivor-ship among joint tenants, apply to such an estate, for it is not a joint tenancy: Robb v. Beaver, 8 W. & S. 107; Auman v. Auman, 9 Harris 343.

But it is said the Act of 1848, by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is, that such a deed conveys a different estate from that which the same deed would have created, if made prior to the passage of the Act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute, imputing to i*fc a purpose never intended. The design of the legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife’s property, by removing it from under the dominion "of the husband. To effectuate this object, she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as before. And the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her, as her own separate property, exeippt from liability for the debts and engagements of her husband. All this had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment; that is, the enjoyment of the estate after it has vested in the wife. And the mode of authorized enjoyment is significant. It is to be as her separate property is enjoyed, as property settled to her separate use. The act therefore no more destroys her union with her husband than does a settlement of property for her separate use. To a certain extent she is enabled, but no more than is neCessai’y, to protect her property after it has been acquired. We have held that she can convey her lands only by joining in a deed with her husband: Pettit v. Fretz, 9 Casey 118. This is a clear recognition of the existing unity of the two. It need not be repeated that no greater effect is to be given to the Act of 1848 than its language and spirit demand. It is a remedial statute, and we construe it so as to suppress the mischief against which it was aimed, but not as altering the common law any further than is necessary to remove that mischief. To hold it as operating upon the deed conveying land to a wife, making such deed assure a different estate from what it would have assured without the act, is to lose sight of the legislative purpose. Were we to do so, it would become in many cases a means of divesting her of her property, instead of an instrument of protection. In the present case, if it has converted the estate granted to Diver and his wife into a tenancy in common, it has taken from her her ownership and enjoyment of the entirety during her husband’s life and her right of survivorship to the whole. On this subject the remarks of Chief Justice Lewis in Strickley v. Keefe’s Executors, 2 Casey 401, are worthy of attention.

We hold, then, that no such effect is to be given to the Act of 1848, or any of its cognate acts. The legal unity of husband and wife still remains, and consequently Mrs. Diver, on the death of her husband, succeeded to the whole estate granted by the deed.

It follows that there is no error in the record.

Judgment afSrme^.