(dissenting.) The only question presented in this case is whether a married woman can convey her real estate directly to her husband. The wife of the defendant “ not being indebted to any person, without being influenced by the said defendant, but in good faith and without fraud, freely and voluntarily, as her,own act and deed, with intent to and for the purpose of giving the said land to the defendant, and of vesting the title to the same in him, in view and in the prospect of immediate death to her known, and being of sound mind and understanding, did sign, seal, acknowledge, execute and deliver, in due form of law, to the defendant, her husband, a quitclaim deed, conveying to the defendant, in his actual possession then being, the said land &c., and on the next day thereafter departed this life, leaving the *258said deed in full force and effect, and also leaving her surviving two infant children.”
Upon the foregoing agreed state of facts the plaintiff claims that the deed is utterly void and of no effect, while the defendant insists that the deed from his wife is a good deed of gift mortis causa, both at law and equity.” The deed was executed the 15th of "August, 1849; and as to part of the land, the wife became the owner by inheritance from her mother, after the passage of the act of 1848, and the balance having been inherited from her father several years previous.
“ By marriage, the husband and wife are one person in law, (1 Inst. 112;) that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of her husband, under whose wing, protection and cover, she performs every thing, and is therefore called in our law French, a ‘ femme covert.’ ” (Jacob’s Law Dict. Baron and Feme.) Such was the strict rule of the common law, and upon that principle of union of persons in husband and wife have depended almost all the legal rights, duties and disabilities which either of them acquire by or during the marriage.
For this reason, a man cannot grant any thing to his wife, or enter into a covenant with her; for the grant would be to suppose her to possess a distinct and separate existence. (Story’s Equity, § 1367.) Under the Roman law, marriage was said to be conjunctio maris et fcemince; consortium omijs vitce divini et humani juris communicatio—that joining*together of the male and female, the fellowship of a whole life and the union of both the divine and human law. Y et, under the Roman civil law, more liberal rules prevailed in relation to a married woman’s rights of property; and fob lowing these rules, courts of equity, at an early day, began the introduction of a more liberal system to meet the wants and necessities of a higher and perhaps a better civilization, and which were not provided for under the stern and unbendr ing rules of the English common law. “ Courts of equity, *259for many purposes, treat the husband and wife as the civil law treats them, as distinct persons capable, in a limited sense, of contracting with each other, of suing each other, and of having separate estates, debts and interests. (Story’s Eq. § 1368.) But to protect the property of the wife from the operation of the rules of the common law, the intervention of trustees became necessary; and complicated forms of conveyances, uses, trusts, powers and appointments, followed in the train. Our recent statutes, while embodying many of the principles and rules of the courts of equity, have swept away the cumbrous appendages, and declared that a married woman may hold in her own name, to her own use, her separate estate, both real and personal, not subject to the disposal of her husband, and not liable for his debts; and may convey and devise the same in the same manner and with like effect as. if she were unmarried.
It would seem as if nothing more was necessary. But while it is admittéd that she has almost unlimited power of disposing of her estate, it is said that the husband cannot be the donee or grantee, because he and the wife are but one person in the law, and a conveyance to him would therefore be but a conveyance to herself, which it is manifestly impossible for her to make. And yet at all times, or for many years, in this state, and long prior to the acts of 1848 and 1849, a wife could unite with her husband in a deed of her real estate to a third party, and that third party reconvey to the husband, thus vesting complete title in him; and such a conveyance, in cases free from fraud or undue influence, would be upheld. A wife could give her property to her husband, as was held in Jaques v. The Methodist Church, (17 John. 548.) And it was held in other cases, that when there "frere settlements, and the power of appointment was given to the wife by deed, she might make her husband the appointee, in cases likewise free from fraud. It would seem, therefore, that it was worse than useless to hold that the wife may not do directly that which it is clear she may do indi*260rectly. The maxim of the common law, that the husband and wife are but one person in the law, so far as the wife’s separate estate is concerned, is no longer applicable, and is a mere legal fiction. It is still however, in many respects, applicable and in force. Few in our land, of right thinking, persons, would be willing to see the rules of the common law, which regulate the domestic relations, materially altered. The husband is still the head of the family and master of the household; within bis domains he is king, and if he rules rather by the jpotior affectio than by the potior vis, so'much the better. As representative, he unites for many purposes the interests of both himself and his wife. I have not overlooked the provisions of the act of 1849, that any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband. She could always take from him, before these statutes, by devise and bequest directly, and indirectly by gift or grant. She may do sb now, but the property so obtained by gift or grant indirectly she may not hold and enjoy and convey to the full extent provided for in these statutes. It may well be that" the legislature thought it not prudent to afford additional facilities for the husband to vest his estate in the wife, who could not make binding contracts except as they were charges upon her estate. But however this may be, it does not necessarily restrict the right of the wife to convey to her husband her own separate estate. The gift in this case can hardly be called, as claimed by the defendant’s counsel, a donatio causa mortis. Such gifts have reference solely to personal property, such as the dying person may deliver or cause to be delivered. It has been held to include bonds and other securities payable to the giver; and in Wright v. Wright, (1 Cowen, 598,) a promissory note, executed by the dying man and given to his brother, was held a charge against the estate.
The definition given in Prince v. Hazleton by the chancellor, in his opinion, (20 John. 514,) was this: “ A donatio *261causa mortis is where a man lies in extremity, or being surprised by sickness, and not having an opportunity of making his will, but lest he should die before he could make it, gives away personal property with his own hands. If he dies, it operates as a legacy. If he recovers, the property reverts to him.” So far as I have been enabled to find authorities or definitions, these gifts have been confined to personal property or choses in action—something which could be delivered into the' hands of the donee. The donatio causa mortis was in many respects like a nuncupative will, and both have generally been carefully considered and examined before effect has been given to them. In the case before us, however, there was a deed duly executed and acknowledged with as much care and form as would have attended a written will; and it would operate if at all, unless put in escrow, upon delivery. ' At the same time, in point of fact, it was given in contemplation of immediate death, and which death took place on the following day. How it was said that the reason why a wife could take from her husband by devise, when she could not take by direct grant, was that the death of the husband restored her legal individuality, and that the devise took effect only after his death; and consequently, at the time of the vesting of the estate, the wife was restored to her legal existence, and capable of taking as a femme sole. Still, both in devises by written wills and gifts, in contemplation of immediate death, of personal property, they were alike dependent as to their becoming operative, on the death of the devisor or donor. How far a deed, executed and placed in escrow, to be delivered in case of death, might be considered as a donatio causa mortis, it is not necessary to determine, as the deed in the present case was delivered at the time of execution, as I infer from flle case. Practically it operated as a devise; but I am disposed to place my decision on broader grounds, and to hold that the acts of |he legislature of Hew York, which ha^e ^cjuqed^to ar- m^medt^c^gian her own separate estate, free from the dispos§l of it by her husband, or *262by his creditors, and giving to her unlimited powers of disposition and control over it, saying that she may manage and dispose of it as if she were an unmarried woman; also discharging the husband from any personal liability for the debts of the wife contracted previous to the marriage—that these acts, all taken together, have abrogated the old rule of the common law. They recognize and declare the distinct legal existence of the wife, as regards her separate estate. As to her estate, her identity is no longer merged in that of her husband.
[Broome General Term, January 24, 1860.Mason, Balcom and Campbell, Justices.]
It has been considered one of the beauties of the common law, one of the advantages of its rules over codes enacted by legislatures, that those rules could be modulated, as it were, by judicial legislation, and made to conform to the changing customs and the more general legislation of the country. When the legislature has distinctly spoken through its laws, it is the duty of courts to conform. In several distinct acts in different years, the legislature has provided for the rights of married women as to their separate estates. They declare that she may give her property to whom she pleases, the same as if she were an unmarried woman. There is no good reason why she may not give it to her husband, as well as to a stranger; and there is no reason why she may not as well convey directly to him as to unite with him in a conveyance to a third party, with the agreement that the third party is to reconvey to the husband.
I am of the opinion that the deed, in this case, from the wife to the husband, vested the legal estate in him, and that there should be judgment for the defendant in this case.
Judgment for the plaintiff.