I am of the opinion that the estate of a tenant by the curtesy, has survived the acts passed in 1848 and 1849, “ for the more effectual protection of the rights of married women,” and therefore that .the plaintiffs in this case are entitled to recover.
The reasons which lead me to this conclusion, are fully stated in the .opinions delivered in Hurd agt. Cass, (9 Barb. 366,) and Clark agt. Clark, (24 Barb. 581,) each of which cases is an authority in point; and also in Shumway agt. Cooper, (16 Barb. 556) ; Vallance agt. Bausch, (28 Barb. 633), and Ransom agt. Nichol, (22 N. Y. 110); which last mentioned cases hold that the acts in question do not divest the husband of his right of succession to his wife’s personalty, on her decease, except where the power of disposal given to her by the statute is actually exercised. Of course that question is not identical in all respects with the question before us, as the one relates to personal property, and the other to real; but, as is said by Justice Sutherland, in Vallance agt. Bausch, “ both questions are mere questions of intention—how far the acts were intended to operate, and the reasons which tend to show that the husband’s right to his wife’s undisposed of personalty on her death, is not inconsistent with the acts, in the main apply equally to the question of the husband’s right or estate as tenant by the curtesy.”
The construction adopted in the cases referred to, is simply this: That the acts of 1848 and 1849 were undoubtedly intended to allow a married woman to take and hold real and personal property to her separate' use, free from the control or disposal of her husband, and free from all liability for his debts, and to enable her to make an effectual disposition of it by deed or will, and thus to place it, *499if she chooses, wholly beyond the power or reach of her husband, but that if the wife omits to exercise her right of disposal, the acts were not intended to interfere with the laws of descent, in respect to the real estate, or the laws giving the husband the right of succession to the personalty.
This construction is also expressly affirmed in respect to tenancy by the curtesy,, in the recent case of Lansing agt. Gulick, (26 How. 250.)
The only case cited in conflict with these views, is Billings agt. Baker, (28 Barb. 343.) Even if it were in point, I should consider it opposed to the weight of authority, but I am unable to see that it touches the question presented by the case at bar. The plaintiff in that case was a married woman, and the action was brought for the partition of certain real estate which came to her by inheritance subsequently to the acts of 1848-9. Her husband was made a defendant, under the impression that by the birth of issue and seisin of the wife during coverture, he had an inchoate interest as tenant by the curtesy. On the trial before a referee, one of the defendants was sworn as a witness in his own behalf. The plaintiff was then advised that her testimony was material in her own behalf, but that she was not a competent witness, by reason of her husband being a party. She thereupon moved at special term to strike out her husband’s name as a defendant, to enable her to be a witness in her own behalf; the motion was granted, and on appeal, the order was affirmed. Now it is evident that the only question to be decided was whether-the husband during coverture, had any interest in the separate estate of his- wife, which made it necessary for her to bring him into court, to entitle her to a judgment of partition. In respect to that question, the decision is undoubtedly correct, and instead of conflicting with the other cases cited, is in harmony with them. During the life time of the wife, the husband had no interest in her real estate which per*500mitted him in any way to interfere with her absolute right of disposal. As she could “ convey her lands, * * or any interest or estate therein, * * in the same manner and with like effect as if she were unmarried,” she could of course partition them either by agreement with her co-tenants and mutual conveyancers, or by suit; and in the latter case, it seems to me there was no more necessity of making’ her husband a party, than there would have been of his joining’ in a partition deed. Even assuming that he would have taken an estate as tenant by the curtesy, in case of her leaving the real estate undisposed of at her death, still, as lie could not interfere with her absolute right of disposal in her life time, he had no more right to be heard upon the question whether partition should be made, than her children had, who, in the like event, would have taken as heirs subject to his estate. If partition was made, his estate as tenant by the curtesy would be confined to the portion set apart to her. The question whether upon the death of a married woman, intestate, her husband takes as tenant by the curtesy in the lands of which she dies seized, had not arisen in respect to the lands of Mrs. Billings, and 1 think therefore that case can not be regarded as an authority upon this question.
I am in favor of reversing the judgment for the defendant, and granting a new trial.