Bozarth v. Largent

Citations

• 128 Ill. 95
• 21 N.E. 218

Syllabus

<p>1. Estate of husband in wife’s land—at common law—of the estate during coverture—and estate by the curtesy—Married Woman’s act of 1861. At the common law, a husband held, in right of his wife, all her lands in possession, and owned the rents and profits thereof absolutely. The birth of issue was not necessary to this right of the husband, which continued during the joint lives of the husband and wife. It was called an estate during coverture, or the husband’s freehold estate jure uxoris.</p> <p>2. This estate of the husband in his wife’s lands differed from curtesy initiate in its being a vested estate in possession, while the latter is a contingent future estate, dependent upon the birth of issue. It was held in right of the wife, and was not added to or diminished when curtesy initiate arose. Subject to the husband’s beneficial enjoyment during coverture, the ownership remained in the wife, and on dissolution of the marriage the property was discharged from such estate of the husband.</p> <p>3. Where there was marriage, seizin of the wife and birth of issue capable of inheriting, the husband, by the common law, took an estate in the wife’s lands during coverture. This was an estate of tenancy by the curtesy initiate, which would become consummate upon the death of the wife in the lifetime of the tenant. Upon the death of the wife, a tenant by the curtesy was seized of an estate of freehold, which was subject to alienation, and was liable to be taken on execution for his debts.</p> <p>4. The effect of the Married Woman’s act of 1861 was to abrogate the husband’s estate in his wife’s lands, or the estate he would have had at common law during the coverture, when the marriage took place after that act took effect, and, consequently, during the coverture he would have no estate therein liable to execution or attachment. This act did away with the estate he would have had, at common law, growing out of the marital relation.</p> <p>5. The general effect of statutes o