252 Mass. 582

March 16, 1925 - May 23, 1925

Suffolk County


Tenants by the Entirety. Husband and Wife.

The rule of common law, that the right to possession of real estate owned by a husband and his wife as tenants by the entirety is in the husband, has not been changed by statute in this Commonwealth.

BILL IN EQUITY, filed in the Superior Court on March 14, 1924, and afterwards amended, seeking to enjoin the defendants from interfering with the plaintiff's alleged right to possession of certain real estate owned by the plaintiff and her husband, the defendant Herman R. Voigt, as tenants by the entirety.

The defendant Herman R. Voigt demurred to the bill. The demurrer was heard by Lummus, J., and was sustained. The bill was dismissed as to the defendant Anna Voigt by consent of the plaintiff. A final decree was entered dismissing the bill as to the defendant Herman R. Voigt, and the plaintiff appealed.

The case was submitted on briefs.

J. F. Daly, for the plaintiff.

G. A. Healy & J. F. Farrell, for the defendants.

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.

Page 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.