making" or betting upon horse-races to take place upon the racecourse of that association there. He carried on the business in a box or booth, within the covered inclosure of the association, under what is called the grand stand. He was authorized by the association to carry on the business there, and paid a rent or fee to them for the privilege.

The race-course and the box or booth were places of public resort and were frequented during the racing season by great numbers of persons who were invited by McClean to his box or booth to bet upon the

races.

There were a number of these boxes in the same place occupied by other persons who carried on there the same business. The defendant thus kept a place of public resort for the purpose of betting upon the result of horse-races. Under the fifty-sixth section of the act for the punishment of crimes-Rev. 237-betting upon horse-races was a criminal offense. While the supplement to that act passed in 1880-P. L. 1880, p. 195 so amended that section as to repeal the provision making such betting a misdemeanor, it did not repeal or affect the provision of the act to prevent gaming-Rev. 458-which declared all wagers, bets or stakes made to depend upon any race to be unlawful. The place kept by McClean was kept in order that the public might resort thereto and engage in the unlawful practice of betting upon horse-races, and such practices were habitually carried on there. Any place of public resort in which illegal practices are habitually carried on is a public nuisance, and a person who keeps such a place is guilty of an indictable misdemeanor. State v. Williams, 1 Vr. 102. The keeping of a common gaming-house is indictable at the common law as being injurious to the public morals. The mere fact that the legislature has repealed the enactment by which betting upon horse-races was made an indictable offense obviously does not render the practice of betting upon horse-races any the less injurious to public morality than it was before. Indeed the provisions of the act of 1880, above referred to, are in themselves evidence that the legislature regards such betting as an offense against public morals.

The judgment of the supreme court should be affirmed.

NEW YORK BAY CEMETERY Co. v. BUCKMASTER.
March, 1887.

A conveyance in fee of cemetery lots was made for the uses of sepulture only, and subject to the conditions and limitations, and with the privileges specified in the rules and regulations which at the date of the conveyance were made, or which might thereafter be made and adopted by the managers of the cemetery company. Held, that the grantee was entitled to the possession of the lots as against the cemetery company.*

In error to the supreme court.

Talcott & Meyers, for plaintiff in error. W. A. Lewis and M. T Newbold, for defendant in error.

RUNYON, Chancellor. This suit was brought by Clara Buckmaster, to

*See 29 Eng. Rep. 628.

recover possession of certain lots in the cemetery plot of the New York Bay Cemetery Company. The conveyances from the company under which she claims title and right of possession were made to her father. While they convey the property in fee, they convey it for the uses of sepulture only, and to and for no other use whatever, and subject to the conditions and limitations, and with the privileges specified in the rules and regulations which at the date of the conveyances were made, or which might thereafter be made and adopted by the managers of the cemetery for the government of the lot-holders and visitors.

It is urged by the cemetery company that the interest which was conveyed by those deeds is a mere right of burial, and that, therefore, the company and not the grantee or his assigns are entitled to possession. In this connection it is urged also that while by its charterP. L. 1850, p. 194-the company is authorized to acquire land for its purposes, and is empowered to sell or otherwise dispose of it in sub-lots, and to convey such sub-lots in fee; the charter also provides that they shall be conveyed to be occupied only as burial places for deceased human beings, with the uses and privileges of the several avenues, walks and chapels in the cemetery, subject to such regulations as at the passage of the charter had been or thereafter might be established by the association in relation thereto. Also that the charter provides that the care and management of the cemetery shall be confided to the incorporators and their successors who shall have the exclusive superintendence thereof, with power to appoint and employ such officers and agents as they shall deem expedient, to fix their compensation, to cause the grounds, graves, walks and improvements to be kept in good order, and generally to do all such other things for the interest of the association and lot-holders as may be proper in the premises, and that it shall be the duty of the company to cause the cemetery to be inclosed, and at all times to keep the inclosure in good order and repair, and to keep and maintain the grounds in a clean and neat condition.

The counsel of the company insist that these provisions are incompatible with any right of possession in the lot-holders. But the conveyances under which Miss Buckmaster claims pass to her the fee in the property. And it is to her own use, although that use is limited. The fact that she is thus limited in the use which she is to make of the property does not deprive her of the right of possession. Neither does the fact that the company is to have the care, and management, and exclusive superintendence of the cemetery of which the property forms a part. These things are not incompatible with possession by her.. The case differs essentially from those cited by the counsel of the company.

In Queen v. Abney Park Cemetery Co., L. R., 8 Q. B. 515-a taxcase-the conveyance released and confirmed a plot of ground in the cemetery to hold to the grantee, and his heirs and assigns forever, but nevertheless, upon trust and to the intent that he or they might erect or construct a vault or mausoleum in or upon the same, and might use the plot as and for a place of burial, and for no other purpose; and, subject to that intent, in trust for the company as part of the property of the company.

It was held that the company was taxable for the property as the occupant thereof. In Queen v. St. Mary Abbots, 12 A. & E: 824also a tax-case-the company had the title for the land and sold rights of burial therein in perpetuity.

It was held that it was liable to be rated as occupier of the whole of the ground. In Buffalo City Cemetery Association v. City of Buffalo, 46 N. Y. 503, the conveyance was made under the statute which provided that the company should have the fee and the lot-owners only a license or easement for burial purposes, and the decision was put upon the ground that the company was the owner of the fee. The judgment of the supreme court should be affirmed.

VAN SYCKEL, J. (dissenting). Clara Buckmaster, the plaintiff in ejectment, derived her title from the New York Bay Cemetery Company, the defendant in ejectment. All the deeds in her claim of title contain the following habendum clause: "To have and to hold the .. heirs and assigns for the uses of granted premises to the said. sepulture only, and to and for no other uses whatever, subject, however, to the conditions and limitations, and with the privileges specified in the rules and regulations now made or that may hereafter be made and adopted by the managers of the said cemetery for the government of the lot holders and visitors of the same."

The act of incorporation of the cemetery company provides, that the company shall have exclusive superintendence of the cemetery with power to cause graves, walks and grounds to be kept in good order by such persons as they may employ.

The charter also imposes upon the company the duty of inclosing their grounds with a substantial fence, and of keeping the fence and grounds in good condition. There was no evidence before the trial that the lot-owner had been refused possession of her lots for the purpose of sepulture or for any other purpose, or that any demand was made by her upon the company for possession for any purpose, before suit brought. The court below directed a verdict for the plaintiff. In this I think there was error.

A rule which permits every lot-owner under such circumstances to vex the company with an ejectment suit must prove ruinous to the best interest of the company, and disable it to perform those duties which are cast upon it by its charter.

The lot-owner is not entitled to the exclusive possession as against the company. Her right is not inconsistent with the continued possession of the company, and until that right is denied her, I cannot comprehend how she can maintain any action against the corporation, which, so far as appears, has done nothing to exclude the lot-owner from the full enjoyment of her rights.

In my opinion, the judgment below should be reversed.

A conveyance of lands, since the passage of the married woman's act of 1852, to husband and wife, does not create a tenancy in common.

That act endows the wife with the capacity, during the joint lives, to hold in her possession as a single female, one-half of the estate in common with her husband; the right of survivorship still exists as at common law.

To constitute a tenancy in common between husband and wife, there must be in the conveyance an expression of an intention to do so.

On appeal from court of chancery.

Abel I. Smith and Fred. Stevens, for appellants. Hoffman & Herbert, for respondent.

VAN SYCKEL, J. The bill in this case was filed by Elizabeth Rosenblath, a judgment creditor of Christian Buttlar, to set aside certain conveyances of real estate, alleged to be fraudulent as against her.

The lands in question were conveyed October 12, 1881, by one Catharine Quidert to said Christian Buttlar and Minna, his wife. The decree of the court of chancery declares the conveyance by the judgment debtor void as against the judgment of the complainant, and also adjudges that by virtue of the conveyance aforesaid to said Christian and Minna, the said Christian Buttlar was seized, as against said complainant, as tenant in common with his said wife of the lands so conveyed. I concur in the view taken by the court below, that the conveyances set aside were fraudulent as to said judgment creditors. The only question, therefore, to be discussed is, as to the effect of the married woman's act upon an estate granted or conveyed to husband and wife.

In a recent case in England the construction of the married woman's property act of 1882 was directly involved. Mander v. Harris, 24 Ch. Div. 222. The act provides that "a married woman shall, in accordance with the provisions of said act, be capable of acquiring, holding and disposing by will, or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee."

Mr. Justice CHITTY delivered the opinion of the court, that the old rule of law that husband and wife were for most purposes one person, so that under a gift by will to a husband and wife and a third person, the husband and wife took only one moiety between them, the third person taking the other moiety, is no longer applicable to such a gift under a will that has come into operation since the passage of the act of 1882.

This case was reversed on appeal, on the ground that the will was executed before the passage of the act of 1882, and the court declined to express any opinion as to the effect of such words in a will, made. after the said act came into operation. Mander v. Harris, 27 Ch. Div. 166.

* See Boone Real Prop. (Pony Series), § 366; Zorntlein v. Bram, 2 East. Rep'r, 40; 34 Hun, 487.

In New York the acts respecting married women do not differ substantially from our own, so far as the question now considered is concerned.

This question was elaborately and ably discussed in a recent case in the New York court of appeals. The conclusion there reached is, that the common-law doctrine has not been abrogated by the statutory provisions, and that under a conveyance to a husband and wife jointly, they take, not as tenants in common or as joint tenants, but as tenants by the entirety, and upon the death of either the survivor takes the whole estate. Bertles v. Nunan, 92 N. Y. 152; 44 Am. Rep. 361.

Our legislation, which preserves to married women their separate rights of property, has no effect upon the capacity of the wife to take property; she has no greater right to receive conveyances than she had at common law, but legislation has secured to her what she did not have at common law, the use, benefit and control of her own real estate. The statute does not purport to define or limit the estate husband and wife shall take in lands conveyed to them jointly.

It does not change or modify in any wise the signification or effect of terms used in common-law conveyances. It simply enables the wife to have and enjoy whatever estate she gets by any conveyance made to her, or to her and others jointly, and does not enlarge or diminish that estate. It operates upon the enjoyment and not upon the character, quantum or extent of it. It is argued that the reason upon which the common-law rule rests has ceased to exist, and hence that the rule should no longer be adhered to. This contention is not well founded. This legislation has not destroyed the unity of husband and wife, recognized in the common law, and made them substantially separate persons in respect to property rights.

In this State the wife cannot convey her lands unless the husband joins in the execution of the deed. The husband cannot convey directly to the wife, nor the wife to the husband.

The common-law incidents of the marriage relation are not all swept away. The rule is everywhere recognized that they are extinguished only where the intention to remove them clearly appears. The ability of the wife to make contracts is limited, and she can bind herself only where she is expressly authorized by statute to do so. Nor is her estate so absolutely freed from the effect of the marriage relation as to deprive the husband wholly of his common-law right of tenancy by the curtesy.

Although the cases are conflicting, there is abundant authority to support the view of the New York courts that the husband and wife are seized of the entirety, per tout et non per my, and upon the death of either the whole survives to the other. Diver v. Diver, 56 Penn. St. 106; Fisher v. Provin, 25 Mich. 350; Bates v. Seely, 46 Penn. St. 248; Marburg v. Cole, 49 Md. 402; 33 Am. Rep. 266; McDuff v. Beauchamp, 50 Miss. 531; Chandler v. Cheney, 37 Ind. 391. Our own cases are in line with these decisions.

In Thomas v. De Baum, 1 McCarter, 37, Chancellor GREEN decided that the act of our legislature converting estates in joint tenancy into tenancies in common does not extend to estates held by husband and