Voigt v. Voigt

Carroll, J.

The plaintiff is the wife of the defendant Herman R. Voigt. The defendant Anna Voigt is his mother. The bill alleges that the plaintiff and her husband are tenants by the entirety of a parcel of real estate described in the bill; that she is deprived by her husband “with the connivance of . . . [his] mother,” from enjoying her right of possession; and prays that he be enjoined from interfering with her right to occupy the real estate. The plaintiff consented to a decree dismissing the bill against Anna Voigt. The defendant Herman’s demurrer to the bill was sustained; and the plaintiff appealed from the interlocutory decree sustaining the demurrer and the final decree dismissing the bill.

*583 The decrees were right. At common law, as tenants by the entirety, the husband and wife were seised of the estate as one person and not as joint tenants or tenants in common. • There can be no severance of such an estate by the act of either, and the survivor becomes seised as sole owner of the entirety of the estate. Pray v. Stebbins, 141 Mass. 219 , and cases cited. At common law the right to possession during the joint lives of the husband and wife, is in the husband. “He has, during coverture, the usufruct of all the real estate which his wife has in fee simple, fee tail, or for life.” Pray v. Stebbins, supra, page 224. Phelps v. Simons, 159 Mass. 415 . See Hoag v. Hoag, 213. Mass. 50. As the husband had the possession of the real estate during coverture, the plaintiff was not deprived of her rights in the real estate by his possession. This common law right of the husband has not been taken away by statute. G. L. c. 209, § 1, and G. L. c. 209, § 30, are not pertinent to this proceeding. See Pray v. Stebbins, supra; Phelps v. Simons, supra, page 417.

Decrees affirmed.