At common law curtesy was divided into "initiate" and "consummate." Curtesy initiate began immediately upon the birth of lawful issue of the marriage, born alive and capable of inheriting the wife's estate; whereupon the husband acquired an independent life estate in his own right in all the estates of inheritance of the wife in which she had been or might thereafter become seized during coverture. Curtesy consummate was of the same character and with the same incidents except for an additional requisite, namely, the death of the wife. The husband's rights by way of curtesy initiate were, it seems, subject to execution and sale at common law. Gay v. Gay (Ill.), 13 N.E. Rep. 813; Jacobs v. Rice, 33 Ill. 370;Canby's Lessee v. Porter, 12 Ohio 79; Cooley's Blackstone (2d ed.) 412, footnote 14.
Our Married Women's Act of March 25th, 1852 (Nix. Dig. 503), was inconsistent with the continued existence of curtesy initiate. Porch v. Fries (Chancery), 3 C.E. Gr. 204. There was some uncertainty expressed in Chancery as to whether thereafter the interest of a husband in his wife's lands following the birth of issue but preceding the death of the wife should or should not, be called an estate, but this court has clearly stated that the interest constituted a right in the husband and has denominated that right an "inchoate right of curtesy." Trade Insurance Co. v. Barracliff (Court of Errorsand Appeals), 45 N.J.L. 543, 550; Bucci v. Popovich,93 N.J. Eq. 121 (at p. 128), affirmed on the opinion below,Id. 511. And the rather loose references to the right as an "estate" were explained and resolved in the Bucci opinion by the following reference to an illustrative use of that expression by Vice-Chancellor Stevens: *Page 278
"I take it that he was dealing solely with the question involved in the case before him and with similar questions arising between husband and wife, as to their respective rights and interests in the wife's real estate, and that he did not intend to say that upon the birth of issue, the husband becomes seized of such a vested estate in remainder in his wife's lands as a judgment creditor could seize and sell under execution, but that what he decided was that the husband's right of curtesy was a vested right of which he could not be divested by any act of the wife or by the involuntary sale of her land under execution."
Further, this court, speaking through Chief Justice Gummere inHannan v. Wilson, 100 N.J. Eq. 528, specifically and at length approved the holding in Porch v. Fries, supra, to the effect that the husband has, during the wife's life, no interest or estate in lands received by the wife through purchase, gift, grant, devise, descent or in any other manner, and that she can sell and convey them with his assent, viz., by his joining in theexecution of the conveyance, not in the grant itself; and that if she so sells and conveys them, she conveys them, as she holds them, free from any interest or estate of her husband. The opinion in this court adds — "he (the husband) has no present interest in the land which could be made the subject of a grant." It has further been settled by this court that the inchoate right of curtesy of a husband in his wife's separate real estate is personal to him and not subject to the claims of his creditors,Bucci v. Popovich, supra, and that the husband can neither be deprived of that right by his wife's own conveyance nor be divested of it by involuntary sale of his wife's lands under judicial proceedings, Mullen v. Mullen, 98 Id. 90, 92; affirmed on the opinion below, Id. 728 (the right survived partition and attached to the proceeds).
Such changes, if any, as were effected in the law by chapter 68, Pamph. L. 1927, and chapter 209, Pamph. L. 1928, nowR.S. 3:37-1 and 3:37-2, are not relevant. The wife became seized in 1919, and the extent of the husband's inchoate right is governed by the law as it then was. Schmidt v. Gardner,120 N.J. Eq. 235.
This court has further held that "curtesy" is a legal incident *Page 279 of the wife's estate of inheritance, and is a right favored in the law. A husband will not be excluded from rights in the property of the wife springing from the marital relation, except by words that leave no doubt of the intention to do so."Cushing v. Blake (Court of Errors and Appeals),30 N.J. Eq. 689, 697. As curtesy concerns real estate it seems to follow that if it is subject to levy under execution this liability must come from statute and that the statutory provision must be at least fairly clear. I have examined the Judgments Act, Comp.Stat. 1910, p. 2955, the Executions Act, Comp. Stat. 1910,p. 2243, and the Sales of Land Act, Comp. Stat. 1910, p. 4675, and am of the opinion that these statutes do not clearly authorize a sale by virtue of execution under the circumstances of the instant case.
So we have it in the presently established law that a husband, following the birth of issue but preceding the death of his wife, has an inchoate right of curtesy in all the estates of inheritance of the wife in which she has been or may hereafter become seized during coverture; that the right is not an interest or an estate as those terms are used in the law of real property, that the right is personal to the husband and is not subject to the claims of his creditors; and that he may not be divested of it by the involuntary sale of his wife's lands under judicial proceedings; and that while the wife may convey out the lands freed of that inchoate right if the husband joins in the execution of the conveyance, still it is only in the execution that he joins, not in the grant, for he has no present interest which could be made the subject of a grant.
Our courts have never held, or, so far as my study goes, made the statement, in so many words, that an inchoate right of curtesy may not be sold under an execution issued upon a judgment entered jointly against husband and wife; but I conclude that the expressions just reviewed lead inevitably to that further negation.
I believe the law to be that an inchoate right of curtesy is not subject to levy and sale even under a judgment against husband and wife jointly. The defendant believed otherwise, but I think that the divergence of views will not sustain the *Page 280 charge that he did not, in forming his opinion, exercise the reasonable knowledge and skill ordinarily possessed by members of the bar. Negligence in the instant case may not be grounded in, or proved by, the mere fact of a mistaken view of the law of the case. I therefore join in the finding that,
The judgment below should be affirmed.
I am authorized to say that Mr. Justices Parker and Donges and Judges Dear and Wells concur in the foregoing dissenting opinion.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 14.
For reversal — None.