Meyer's Estate

Opinion by

Mr. Justice Stewart,

The appeal is by the trustee in bankruptcy of the estate of Ernest H. Beihl from a decree of the orphans’ court in the adjudication of the account of the trustees under the last will of C. A. Adolph Meyer, deceased, awarding the fund before the court to Ernest H. Beihl and Clara, his wife. The appellant claims the fund in virtue of his office in bankruptcy; the appellees on the ground that the estate vested in them as husband and wife. It is not questioned that under the will through which this estate was derived, husband and wife took by entireties, if indeed such estate may still be created. The contention of appellant is that this venerable and unique common-law estate has been abolished in Pennsylvania by the Act of June 8, 1893, P. L. 344, not in express terms, but by unavoidable implication. The act of June 8, 1893, was meant as a substitute for the earlier Act of June 3,1887, P. L. 332, which it expressly repeals. The primary object in each was the same — to emancipate married women from restraints and disqualifications with which they had been fettered by the common law. The later act embraces within its scope all that was gained for married women by the earlier; and at the same time it removes other disqualifications which the earlier left undisturbed; but it can no more be affirmed of one than of the other, that it discloses a legislative purpose to change the nature of any estate which married women could theretofore have acquired, or destroy or in any way interfere with the legal unity which characterizes the relation of husband and wife, in deference to which and for its better protection perhaps, this peculiar estate by entireties was invented. The title to the act of 1887 reads: “An act, relating to husband and wife, defining the rights to and over their property, to make conveyances and contracts, authorizing them to sue and be sued on their contracts, and for torts, and defining the interest of husband and wife in the estate of each by will or otherwise.” The title to the act of 1893 reads, “An act, relating to husband and wife, enlarging her capacity to acquire and ■dispose of property, to sue and be sued, and to make a last will, and enabling them to sue and testify against each, other in certain cases.” Since it is squarely ruled in Bramberry’s Estate, 156 Pa. 628, that the act of 1887 was, like the act of 1848, intended to protect the property of the wife from the dominion or control of the husband but not to change the nature of her estate, or destroy the legal unity of the relation, it follows that the present contention can be sustained only as it can be shown that the act of 1893, in its advance upon the act of 1887, unmistakably discloses a purpose to change the nature of the married woman’s estate which she holds by entireties, and reduce it to a tenancy in common. The provision in the act which it is thought reveals such purpose is as follows: “That hereafter a married woman shall have the same right and power as an unmarried person to acquire, own, possess, contract, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, and either in possession or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person,” etc. The argument on behalf of appellant proceeds: “In fact it is difficult to conceive how' there can be much broader language severing the legal fiction of unity between husband and wife and putting her, with respect to any property that she may own, on an equal footing with men.” A.comparison of this provision in the later act with that which more nearly corresponds in the earlier, will show how utterly unimportant, in this particular connection, is the change introduced. It reads, “Hereafter marriage shall not be held to impose any disability or incapacity in a married woman, as to the acquisition, ownership, possession, control, use or disposition of property of any kind, in any trade or business in which she may engage or for necessaries, and for the use, enjoyment and improvement of her separate estate, real or personal; or her right and power to make contracts of any kind, and to give obligations binding herself therefor; but every married woman shall have the same right to acquire, hold, possess, improve, control, use or dispose of her property, real and personal, in possession or expectancy, in the same manner as if she were a feme sole, without the intervention of any trustee, and with all the rights and liabilities incident thereto, except as herein provided, as if she were not married, and property of every kind owned, acquired or earned by a woman, before or during her marriage, shall belong to her, and not to her husband or his creditors,” etc. If it can be said of the earlier act that no intent can be discovered therein to change the nature of the estate of a married woman, or to destroy the legal unity of husband and wife, with quite as much reason can the same be affirmed of the later, whether regard be had to the title or the provisions above quoted. It is unnecessary to repeat here the reasoning of the court in the case above cited. It was satisfactory to the court then, and its correctness has never since been questioned. With the judicial interpretation of the act of 1887, to the effect that it did not change estates by entireties, it is hardly supposable that when the legislature in 1893 came to substitute another act for that, if the intention was to put an end to “the legal fic'tion of unity between husband and wife,” and abolish such estates, that it would have left such intent to be derived by implication, and that too, from provisions in the substitute which no more clearly indicate such intent than those in the act repealed, to say nothing of its rejection of the easier, simpler and more certain method it. might have adopted, the enacting in a single line that thereafter estates in entire-ties should be held as estates in common. Were there nothing else in the case to forbid the implication which the appellant seeks to raise, that feature of the act of 1893 which limits the right of the wife to divide her estate or protect it from the husband by adverse legal proceedings only in case the husband has deserted, or refused to support her, would be sufficient in itself. This qualification and restriction of the right to sue the husband shows clearly, that however much the identity of relation has suffered by modern legislation, enough of it remained to call for the protection of the wife against the husband at least to the extent of leaving existing estates by entireties untouched. We find nothing in the case supporting appellant’s contention, and therefore overrule the assignments of error which challenge the action of the court in denying him participation in the fund..

It is further complained of as error that the court refused to order proper security to be given for the payment to the trustee of one-half the income arising during the life of the wife from the fund for distribution. Whatever the rights of the trustee may be with respect to the fund in the event of the husband surviving his wife, it is too plain for discussion that, except as estates by entirety no longer exist, he can have no present right of enjoyment. We have just held that they do still exist. In estates of this kind husband and wife are not joint tenants or tenants in common, but both are seized of the entirety, per tout et non per my. As a consequence neither can dispose of any part without the consent of the other, but the whole must remain to the other. It follows that the interest of the appellant in the fund in dispute, under all our authorities defining this kind of estate, and its characteristics, is at most a contingent one; he is not presently substituted for the husband, and cannot be. His right to the use and enjoyment of any part of the fund must await the happening of the contingency of the husband surviving the wife. Until that happens the wife’s right to the enjoyment of the whole may not be disputed by anyone claiming under the husband. The very enlightening discussion of the subject in the able opinion of Judge Thayer, approved and adopted by this court in McCurdy v. Canning, 64 Pa. 39, and which has consistently been followed, makes further citation of authority for the views here expressed, unnecessary. This assignment of error is likewise overruled and the appeal is dismissed.