On Petition for Rehearing.
The motion for a rehearing is but a reargument of the questions discussed in the opinion and.is based largely upon the language of the statutes and decisions cited therein, to the effect that the wife may convey her separate property by her sole deed; counsel for defendant contending that that is equivalent to saying that she may dispose of her separate estate as if she were a feme sole. The husband may convey his separate property by his *210sole deed; but that does not, cut off the wife’s dower, and the power of disposal as a necessary incident of ownership only means the power to dispose of the interest owned. Sections 5246 and 5247, B. & C. Comp., are not superseded nor repealed by the legislative act of 1878 for the reason that these sections authorize a greater power in the wife than to convey by her sole deed, but authorize her to deal with her separate property in the same manner as if she were a feme sole. In other words her sole deed, when authorized by the terms of these sections, will convey the fee-simple title, free from the curtesy estate of the husband, and, if the constitution or the act of 1878 contained such a provision, then the curtesy estate would be abolished, and this is the distinction made in the statutes of New York, Michigan, Wisconsin, and Arkansas. The constitutional provision referred to and the statute of 1878 operate to dispense with the necessity of seisin of the wife’s lands by the husband in the right of the wife as incident to the curtesy estate, which was necessary by Section 5544, B. & C. Comp., prior to the adoption of the constitution. However, as stated in the opinion, the existence of the estate by the curtesy is stare decisis, regardless of our present views upon the question.
Every question discussed in the motion was passed upon in the opinion, to which we adhere.
The motion is denied.
Reversed: Rehearing Denied.