Browne v. Bockover , 84 Va. 424 ( 1888 )

Fauntleroy, J.,

delivered the opinion of the court.

The facts pertinent to this appeal, as disclosed by the record, are as follows:

C. W. Whitehurst and his wife, Minia D. Whitehurst, resided in the city of Norfolk, Virginia, and had issue which died during the coverture. Minia I). Whitehurst, the wife, died in March, 1881, leaving a will by which she bequeathed and devised to her said husband all her estate, real and personal; which will was duly admitted to probate and was recorded in the corporation court of Norfolk city, and of which said C. W. Whitehurst qualified as sole executor.

The said Minia D. Whitehurst was, during coverture, and at her death, seized of certain real estate in Norfolk city, and in Norfolk county, which she held as her separate estate, under, the provisions of the act of the general assembly of Virginia, (Acts 1876-7, pp. 838-4,) known as the “married woman’s act.” Among this realty, was a vacant lot in Norfolk city, subject to the lien of a deed of trust, which was sold, and after satisfying the lien of the deed of trust, there was a surplus of proceeds left; and also a house and lot in Brambleton in Norfolk county.

In December, 1880, in the lifetime of Mrs. Minia D. Whitehurst and during the coverture, Jane E. Browne, administratrix of V. H. Browne, deceased, (appellant here) obtained a judgment against the said C. W. Whitehurst for $416 73, with interest from August 3d, 1880, and the costs; which was duly docketed, and on which execution issued, and which is yet unpaid. There were other unsatisfied judgments against said C. W. Whitehurst which were liens in favor of Baker & Clark and of Kennard & Oudesley.

Benjamin T. Bockover (appellee), at the death of Mrs. Minia D. Whitehurst, in March, 1881, held a note dated January 11th, 1881, drawn by C. D. Whitehurst and endorsed by his wife, the said Minia D. Whitehurst, for $2,524 76, payable to said Bockover two years after date, with interest from date, which endorsement by the said Minia D. Whitehurst was intended by her to bind her separate estate for payment of the said note. This note matured January lltli, 1883; and at March rules, 1883, the said Bockover (for himself and creditors of Mrs. Minia D. Whitehurst) filed his bill in this cause, setting up the indebtedness of Mrs. Minia D. Whitehurst to him, the said Bockover, in the said sum of $2,524 76, by reason of her said endorsement, and charging that the estate of which she died •seized and possessed is liable, in the hands of the said O. W. Whitehurst, the executor of her will, first, to the payment of her debt, and praying for an account and decree directing the said executor of her will to pay this debt of Bockover and any •other debts of the testatrix before making any other application of the assets of her statutory separate estate, either to his own use as devisee or to payment of his own debts.

The appellant, Browne’s administratrix, answered this bill, setting up her said judgment of December, 1880, against 0. W. Whitehurst, and claiming that it is a lien on Whitehurst’s estate by the curtesy consummate, and that, to the extent of his life estate by the curtesy, her said judgment has priority over the general lien of Bockover and the other creditors of Mrs. Minia D. Whitehurst, which is only on the remainder, and asking that this life estate in the surplus of the proceeds of sale of the lot in Norfolk city and the house and lot in Brambleton be applied to her said judgment and other judgments against said O. W. Whitehurst. On reference to a master commissioner, by decree for an account, the commissioner raised the question, whether, in respect of the curtesy of said C. W. Whitehurst, there is a lien on the statutory separate estate of Minia D. Whitehurst in favor of his judgment creditors?

The said corporation court of the city of Norfolk, by a decree of 7th December, 1883, decided that C. W. Whitehurst had an estate by the curtesy consummate, in the realty of which his wife died seized, and that this life estate is liable, first, to the liens of his judgment creditors, and directed that, to the extent of this life estate therein, the said surplus of proceeds of sale of the Norfolk city lot and the said house and lot in Brambleton should be applied to the payment ot, first, the judgment liens of Baker & Clark; second, of Browne’s administratrix; and third, of Kennard & Oudesley.

On the 15th of May, 1884, Bockover filed his petition for a rehearing, on the grounds that his claim for $2,524 76 and interest, evidenced by the note aforesaid, endorsed by Mrs. Minia D. Whitehurst, was a charge on the separate estate of the said Minia D. Whitehurst; that the act of 4th of April, 1877, (the married woman’s act) destroyed the estate of the husband by the curtesy initiate in the wife’s lands, and no interest whatever in the wife’s lands vested in him during the coverture, according to the case of Breeding v. Davis, decided by this court at Wytheville in July, 1883, and reported in 77 Va., (2 Hansbrough) 639.

The court, on this rehearing, reversed its decree of 7th December, 1883, so far as relates to this question of lien on the curtesy, and, by its decree of the 7th of May, 1885, decided that the entire estate of Mrs. Minia D. Whitehurst is immediately liable for payment of her creditors, and that the judgment creditors of her husband, C. W. Whitehurst, had no lien on her. realty prior to her creditors by reason of any estate by curtesy consummate in her said husband. And, by further decree of 17th July, 1885, the said court directs the payment to Bockover and other creditors of Mrs. Minia D. Whitehurst of their claims out of the said surplus of proceeds of sale of the Norfolk city lot and the proceeds of the Brambleton property, which, in December, 1883, it had directed to be applied to the judgment liens of appellants to the extent of the said estate by curtesy. From these two decrees of May 7th, 1885, and July 27th, 1885, Browne’s administratrix obtained this appeal.

There is but one question submitted by this record for the decision of this court. And that is, was there or not an estate by the curtesy consummate in Ms wife’s realty, vested in tbe said O. W. Whitehurst at his wife’s death, which is subject to the liens of his judgment creditors obtained in his wife’s lifetime and during coverture, prior to the general liens of her creditors on her realty to the extent of his life estate ?

The estate by the curtesy initiate, before the act of 1876-7, wás'a‘Marital right of the husband to the possibility of an estate by the curtesy consummate, to an estate for life, in the wife’s realty; if there should be or had been issue, and if the husband should survive the wife. The act of 1876-7 makes no change in this initiate right, except to add a new contingency—that of alienation by the wife in her lifetime; but it does not destroy the right initiate, which was, before the act of 1876-7, aright to the chance of surviving the wife; and is now, under the act, subject to the double contingency of his surviving, and her not alienating in her lifetime. The express provision of the married woman’s act is to the effect that nothing contained in this act shall be construed to deprive the husband of curtesy in the wife’s real estate to which he was entitled by the laws then in force. (Acts 1876-7, chapter 329, section 2.) And, by the amending act it is provided, that nothing contained in this act shall be construed to deprive the husband of curtesy in the wife’s real estate, nor the wife of dower in her husband’s estate. (Acts 1877-8, p. 248.)

The initiate right of the husband, under the decision in Breeding v. Davis, could be or would be defeated if the realty of the wife were aliened during coverture, either by the joint deed of the wife and husband, or by sale and conveyance, under decree of a court of equity, at her suit, for the pupose of effecting such alienation, where her husband refused to unite with her in such alienation; but the husband retains under the statute his right of having vested in him a life estate in the realty of the wife, as tenant by the curtesy consummate, if neither of the two contingencies—the old one of his death, nor the new one of her alienation in her lifetime, should intervene to defeat the consummate vesting of the life estate hy the curtesy.

There had been no alienation in this ease at bar, and no suit by the wife to effect alienation; and hy operation of law, the moment Mrs. Whitehurst died, the husband, C. W. Whitehurst, acquired a vested estate for life in her realty as tenant by the curtesy consummate; which said life estate is subject to the judgment liens of the appellants. The appellee, Bockover, at the date of Mrs. Whitehurst’s death, had no judgment or other specific lien; and, in fact, his debt was not due for nearly two years after her death. Bockover, in common with all her other creditors, had at her death a general lien on all her estate, real and personal, in the hands of her executor. But what was her estate at her death ? It was the realty named, which she held as her separate estate, subject to the contingent right of her husband to a life estate given to him by operation of law; her estate was the remainder in fie, after the husband’s life estate; and this remainder is all that the general lien of appellee, Bockover, and her other creditors could attach to. And the title of the husband to this life estate is, by law, paramount to the liens of the creditors of the wife; and the lien of the judgment of the appellant binds this life estate of the husband, O. W. Whitehurst, beyond all competition hy the appellees.

The merger of the husband’s life estate with the fee, by the devise in her will of all to the husband, could not destroy the right of appellants to resort to the husband’s life estate for satisfaction of their judgment lien. She could devise only what she held; and she had held this realty as her separate estate, subject to the ultimate vesting of her husband’s life estate by the curtesy consummate, if he should survive her, and she did not in her lifetime alienate it.

The corporation court of Norfolk city erred in reversing its own decree of December 7th, 1883; and in directing payment to appellee, prior to, and to the exclusion of, the appellant’s right to satisfaction qf her judgment lien, out of the life estate.

The said decrees, of May 7th, 1885, and of July 17th, 1885, must be reversed, so far as they are complained of; and the case will be remanded, with instructions to the said corporation court, to decree the application of the surplus of proceeds of sale of the Norfolk city lot, and the proceeds of the Bramble-ton house and lot, to the extent of C. W. Whitehurst’s life estate therein, and also the income accrued therefrom to this time, to the payment of the judgment liens of—first, Baker & Clark; second, of Browne’s administratrix (appellant); third, of Kennard & Oudesley, and the costs.

The rest of the decrees, not complained of, will be affirmed.

Richardson, J., dissented.

Judgment reversed.