A tenancy by the curtesy initiate is not subject to attachment in Rhode Island for the husband's debts. A writ in the form prescribed by cap. 857 Public Laws, March 31, 1870, combining attachment and summons, was served by attachment, a single attested copy being left with the defendant. Held, that it was also sufficiently served as a writ of summons under Rev. Stat. R.I. cap. 179, § 6.
DURFEE, C.J.
We are asked to decide in this case whether, under chapter 136 of the Revised Statutes, a man who marries and has living children by his wife acquires an interest in her real estate of inheritance, as secured by the first section of that chapter, which can be legally attached for his debts during her lifetime. We think not. The statute expressly says that the real estate which is the property of any woman before marriage, or which may become her property after marriage, shall be so far secured to her sole and separate use that the same, and the rents, profits, and income thereof, shall not be liable to be attached or in any way taken for the debts of the husband, either before or after his death. The protection extends to the real estate which is the property of a woman before marriage, to the real estate which may become her property after marriage, and to all the rents, profits, and income of her real estate of either description. Let us consider the question submitted to us first, with reference to the real estate which is her property before marriage. Certainly an exemption which covers the real estate which is the property of a woman before marriage, together with all the rents, profits, and income thereof, leaves nothing to be attached; for any interest which the husband acquires therein as the result of the marriage must necessarily be some portion of the real estate or of the rents, profits, or income thereof, all of which is exempt. Does the real estate which becomes her property after marriage stand upon any different footing? We think not. The two descriptions of property are coupled in the same sentence, and in a manner which shows that they were both intended to have the same immunity. That which is protected is not the real estate which the wife has at the time of the attachment, but the real estate which was her property before or which becomes her property after marriage. And this construction, based on the letter of the statute, is in keeping with its spirit. The design was to secure the estate during the life of the wife from molestation by the creditors of the husband, and this design is promoted by holding that during her life he simply as husband has no interest in her real estate which can be attached in any suit to which she is not a party.
Demurrer sustained.
Subsequently the plaintiff, without reference to the other questions involved in the pleadings, moved for judgment, on the ground that the writ was well served as a writ of summons. After hearing this motion the court gave the following opinion: —
DURFEE, C.J.
We think the writ was well served as a writ of summons. The statute in force when it issued, Rev. Stat. R.I. cap. 179, § 6 provided that "an original summons shall be served by reading the same to the person to be summoned, or by leaving an attested copy thereof with him, or at his last and usual place of abode." An attested copy of the writ issued in this case was left at the defendant's last and usual place of abode. The objection is that the officer makes return simply of service by attachment, the leaving of the copy being required for such service. The answer to this objection is, that the writ was a writ of summons as well as a writ of attachment; that an attested copy of it was left at the last and usual place of abode of the defendant, which is all that was required for the service of it as a writ of summons; that the fact that the copy may have been left simply for the purpose of perfecting the service by attachment cannot limit the legal effect of the act; and that it is not material that the return is such as would be made of service by attachment only, so long as it shows that everything has been done which is necessary for the service of the writ as a writ of summons as well as for its service as a writ of attachment. The answer is in our opinion conclusive if the service could be made in both forms by leaving a single copy. We see no reason why it might not have been so made. The defendant would get no information from another copy which he could not get from the copy left. The writ was in effect two writs, and the single copy was in effect a copy of both. The defendant by reading it would have notice that he was summoned, and, by reading the indorsement on it in connection with it, would have notice of the further service by attachment of real estate. If two copies had been left, the notice would have been the same. We think the plaintiff is entitled to judgment even though the service by attachment may be invalid.
After the last opinion, the defendant gave notice of his intention to contest the suit on its merits.
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