Citation Numbers: 17 A.2d 161, 128 N.J. Eq. 469, 1941 N.J. Ch. LEXIS 106
Judges: BIGELOW, V.C.
Filed Date: 1/8/1941
Status: Precedential
Modified Date: 4/15/2017
This is a bill by a widower for the assignment of his curtesy in lands of which his wife died seized.
In 1911, there were conveyed to decedent and her first husband, Frank Kwiatek, as tenants by the entirety, two lots which became her sole property on his death January 1st, 1934. She married complainant June 21st, 1935. Since decedent and complainant had no children, he is not entitled to curtesy under the old law, but only by virtue of the statute which became effective January 1st, 1929, R.S. 3:37-2. Defendants argue that the right to curtesy is determined by the law in effect at the time the wife became seized of the land, citing Walker v. Bennett,
Complainant replies that decedent first took a title, of which curtesy could be an incident in 1934, on the death of her first husband and after the enactment of the statute. This argument is not sound. What title decedent ever had in the land, she acquired from the original conveyance to her and to her first husband; the title that she then took was of such a nature that it would terminate upon her death in the lifetime of her husband or would become sole if she should outlive him. "The survivor of husband and wife has no increase of estate or interest by the decease, having before the entirety, being previously seized of the whole. The survivor, it is true, enjoys the whole, but not because any new or farther estate or interest becomes vested, but because of the original conveyance, and of the same estate and same *Page 471
quantity of estate as at the time the conveyance was perfected."Den, ex dem. Hardenbergh v. Hardenbergh,
But complainant must prevail for another reason. The cases which defendants cite go upon the principle that a wife's inchoate right of dower is a vested interest in the lands of the husband, which the legislature cannot destroy once the wife has acquired it. Conversely, the legislature cannot burden the husband's title with dower or increase the burden. Likewise with curtesy. In some of the cases cited, where the marriage had occurred before the land was purchased, the court said that the right of dower or curtesy is determined by the law as it existed when the husband or wife was first seized of the land. But dower and curtesy have their inception not in the seizin alone but in seizin coupled with coverture. Just as a statute enacted after marriage but before the purchase of the land, will govern curtesy in the land, so a statute will govern which is enacted after the purchase but before the marriage. The statute which became effective in 1929 did not violate any right of deceased or burden her estate in any way. It was her marriage to complainant six years later that encumbered her title with curtesy. Complainant is entitled to curtesy in all the lands of which his wife died seized.
There are mortgages encumbering the lands and complainant seeks exoneration out of the personal estate. Some are mortgages subject to which decedent purchased the property, or subject to which the property was devised to her; others are purchase-money mortgages made by her.
It is a principle of the common law that the personal property of the debtor is the primary fund for the payment of debts. In ancient times, land could not be sold at all on execution.Bulat v. Londrigan,
Where a bond and mortgage are given for the same debt, the rule that the personal estate of the debtor is the primary fund out of which the debt should be made, was changed by the legislature in 1881, by the requirement that the creditor should proceed first to foreclose the mortgage. R.S. 2:65-2. By force of this statute, the mortgaged premises are primarily answerable for the debt. Fidelity Union Trust Co. v. Gottlieb,
Before the enactment of the Mortgage act of 1881, the law was well settled that the widow could require the personal representative to pay her husband's debt which was secured by a lien on the land assigned to her as dower. Campbell v.Campbell,
In the particulars here involved, curtesy and dower are controlled by the same rules. R.S. 3:37-2; Walker v. Bennett,supra. If Mrs. Alt's personal estate is sufficient to pay all her debts, the executor must relieve complainant's curtesy from the burden of the purchase-money mortgages.
The mortgages which encumbered the property when decedent took title are not her debts and are not payable by the executor.Keene v. Munn, supra; McLenahan v. McLenahan,
There must be a reference to a master to determine whether there should be an actual assignment of part of the properties for curtesy, or whether curtesy should be assigned out of rents. And the master must take an account of what is due complainant.
"Until dower or curtesy is assigned, the widow or widower may remain in, hold and enjoy the mansion house of his or her spouse and the messuage or plantation belonging thereto, without being liable to pay rent therefor." R.S. 3:37-4. Under this statute, the rights of widower and widow are the same. Chief-Justice Beasley in McLaughlin v. McLaughlin,
I understand that Mrs. Alt, at the time of her death, lived in an apartment in a multi-family house owned by her. The question whether the "mansion house" mentioned in the statute is the whole property or only the apartment in which decedent lived, may await the proofs which will be presented on the accounting. Davis v.Lowden,
By force of another section of the statute, complainant widower, in addition to his rights in the mansion house, is entitled to damages or mesne profits in the other lands of decedent. R.S. 3:38-1. "That is to say, the value of the whole dower belonging to her from the time of her husband's death, if he shall die seized, unto the day that she shall recover seizin of her dower by the judgment of the court. * * * The person who for that period receives the rents, should be regarded as the bailiff or trustee of the widow." Shields v. Hunt,
The mesne profits are calculated in the same manner as curtesy assigned out of rents is ascertained. The devisees are charged with one-half the rents collected and credited with one-half the taxes, interest on mortgages (except the purchase-money mortgages), cost of repairs and other proper expenses. Burton
v. Mellis,