Parker v. Stuckert

The opinion of the court was delivered by

In respect to the first piece of property mentioned in the sheriff’s return of the inquisition, no question is raised. It is plainly within the meaning of the act of assembly of the 16th June, 1836, relating to executions, and it is conceded that the instrument of writing executed by George Stuckert, on the 30th March, 1835, does not comprehend it.

But in regard to the two other subjects of the inquisition, it is contended that these ought not to have been taken in execution for a debt of George Stuckert, because in the first place, the instrument of writing of March 30th, 1835, is said to be a declaration of trust by George Stuckert, for the exclusive benefit of his wife, made when he was free from debt, and which operated to divest him of all interest in this properly.

That it was within the competency of George Stuckert to divest himself of all interest in this property, and by the intervention of a trustee, restore it beneficially to his wife, is indubitable. Can this end be reached by a direct conveyance from him to his wife?—for that is the character of the instrument resorted to on this occasion. A third person may, by his last will, confer property, whether real or personal, for the sole and separate use of a feme covert, without naming a trustee, and in such cose, the husband wall generally be regarded as trustee. Bennett v. Davis, 2 P. W. 316; Pawlet v. Delaval, 2 Ves. 665. But a direct transfer from husband to wife, purporting to be founded on a valuable consideration; cannot, I apprehend, be affected at all. A transfer of this description implies a contract: to which a. feme covert can, in no instance, be a party.

The second reason urged for vacating the appointment of the sequestrator is, that the annual interest of a widow, secured to *281her agreeably to the intestate laws, on her deceased husband’s real estate, is not embraced by the revised act of 16th June, 1836, relating to executions. The leading section of this act, having reference to the present matter, is in these words:—“ Whenever an estate for life, in any improved lands or tenements, yielding rents, issues or profits, shall be seized in execution, it. shall be the duty of the sheriff, to ascertain by an inquest, in the manner usually practised, the clear profits yearly of such real estate, making reasonable allowances for taxes, necessary repairs, and all reprises, and he shall make return of such inquisition to the court, with his writ.” Purd. Dig, 376.

Two questions have been made upon this branch of the'argument. The principal one is, whether a widow’s right, like the present, is to be deemed an interest in land, liable to sequestration under this section. In Shaupe v. Shaupe, 12 S. & R. 9, it was decided that such a right was an interest in land, and could be levied on and sold under a judgment against the widow. And although a similar right, secured by voluntary conveyance of the parties instead of a judicial proceeding, was held in Crafts v. Webster, 4 Rawle 242, not to be an interest in land, and although the distinction, as to this point, between the two rights, if this mode of expression be allowable, is not apparent to us, yet as the former decision was not adverted to by the counsel nor the court, in the latter case, it cannot be presumed that it was intended to be overruled. We consider ourselves bound, therefore, to say that such a right may be the subject of sequestration. There can be no doubt, the revised act was designed to comprise all kinds of life estates in lands, which, previous to its enactment, were the subject of levy and sale or execution. It is a remedial act, and the new provisions, by which the plaintiff is compelled to elect between a liberari facias and sequestration, were supposed to be more beneficial than the old mode of sale by the sheriff.

Whether such a right in the wife is liable on process against the husband, is the remaining question. In Deitz v. Beard, 2 Watts 170, and Stewart v. Martin, 2 Watts 200, the nature of this right underwent much examination. It was there said to be “of an anomalous character. It is created not by any contract of the parties, but by act of law. It is expressly given in lieu of dower. It partakes in some respects, of the nature of an annuity, in others of a rent-charge, and also of a debt by recognizance,” pp. 172 and *282203. It was decided in the first of these cases, that it was not: subject to be taxed as a ground-rent or rent-charge, although the act of assembly by which it is created, authorises its collection as a rent, and that circumstance was chiefly relied upon in Shaupe v. Shaupe, as imparting to it the characteristic of an interest in land. As an argument auxiliary to its immunity from taxation at all, it was urged by the judge who delivered the opinion of the court in Dietz v. Beard, that at the common law, tenant in dower, was subject to no tolls or taxes, and that this right was substituted for dower. Now on the marriage of tenant in dower, her husband would acquire such an interest in the dower estate, as might be levied on under an execution against him. . In short, Shaupe v. Shaupe, if rightly decided, determines that the right of the widow is an interest in land, and whatever, therefore, may be its appropriate designation, the husband by marriage succeeds to what, under our laws, is bound by judgment against him, and consequently may be properly sequestrated.

Rule discharged.