Does a husband's common law right to control and use his wife's real estate change when the husband dies?

"New York", United States of America

The following excerpt is from Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337 (N.Y. 1895):

a conveyance to husband and wife they take not as tenants in common, nor as joint tenants, but by the entirety, and upon the death of either the survivor takes the whole estate. In that case the husband had died, leaving his wife surviving, and the question was whether the wife, as survivor, took upon the death of her husband the entire fee under the doctrine of the common law. The question, what change, if any, had been wrought by the separate property acts in respect to the common-law rights of the husband to control and use the property conveyed to husband and wife jointly, during their joint lives, was not considered or decided, but was expressly reserved, on the ground that it was not involved in the case then before the court. That question is involved in the present case, and must now be decided. The decision in Bertles v. Nunan is supported by the great weight of authority in other jurisdictions in this country, but in some of the states it has been held that, as a consequence of statutory provisions substantially like those in this state, conferring upon married women the right to take and hold separate property to their own use, free from the control of their husbands, as femes sole, estates by entireties have been abrogated, and turned into tenancies in common. In the states where this construction has been put upon the married women's acts, the question of the rights of the parties to the usufruct during their joint lives could scarcely arise, because it is one of the generally admitted results of this legislation that the common-law right vested in the husband to the rents, profits, and use of his wife's real estate duting their joint lives has been destroyed.

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