Robinson v. Lakenan

The single question presented for our decision is, did Mrs. Laughlin’s husband have an interest *140by the curtesy in the surplus in Lakenan’s hands, which surplus arose from the sale by Lakenan of Mrs. Laughlin’s land after her death under his, the second deed of trust? In favor of such interest by the husband there existed lawful marriage, seizure by the wife during coverture, birth of living children, and the death of the wife. Against such interest the respondents contend, on the ground that, by signing the deeds of trust with his wife, the husband parted with such interest, and that the saje under the second deed of trust forever cut out his claim to the curtesy in the surplus. A husband has curtesy in an equity of redemption. 4 Kent’s Com. 31; 1 Perry on Trusts, sect. 324; Schouler’s Dom. Rel. 164; Tiedeman on Real Prop., sect. 105; 2 Jones on Mort., sect. 1067; Davis v. Mason, 1 Pet. 508. By executing the deeds of trust with his wife the husband released his rights by the curtesy only as against the trustees therein and those claiming under them. Jones on Mort. supra. The husband had the right to redeem.

Lakenan, as trustee in the second deed of trust, made the sale after his (Laughlin’s) wife’s death. The surplus in his hands arising from such sale was, therefore, real estate. The husband had a curtesy in such surplus. 2 Jones on Mort., sects. 1693, 1695, 1933; Dunscomb v. Dunscomb, 1 Johns. Ch. 508.

Judgment reversed and cause remanded.