Eyre J.; and they held that it is not the reversion in fee, but the possession, which makes the party inheritable. Both these cases are noticed in my Brother Williams's edition of Saunders in the note to Jeffreson v. Morton, vol. 2. p. 7. These, and many other cases which I shall forbear to mention, prove, that where there is an intermediate estate there is no seisin; though, as I before observed, if a man purchase a reversion expectant upon a freehold, it will descend to his heir, though it has never come into possession. I should not have consumed so much time on this part of the case if the doctrine had not been in some degree impeached by the case of Smith v. Parker, 2Bl. 1230. In that case the Court of Common Pleas held, that where an intermediate tenant for life, with remainder to his first and other sons in tail being in possession of his estate for life, and having the reversion in fee in himself, subject to intermediate estates for life, with contingent limitations to the first and other sons of each tenant for life in tail, entered into a bond, and died without issue, the reversion was assets in the heir to satisfy the bond, when it vested in him in possession. My Brother Williams, in his note to Jeffreson v. Morton, takes notice that the authority of this case was questioned by Lord Thurlow in The Marchioness of Tweedale v. The Earl of Coventry, 1 Bro. Ch. Cas. 240.5 and that the opinion of Lord Hardwicke, as far as it is to be collected from the case of Cunningham v. Moody, 1 Vez. 174. seems also to contradict the opinion of the Court of Common Pleas. It is to be observed indeed that the case was very shortly argued, and, that it does not appear to have received all that consideration from the Court which it deserved. Mr. Serjt. Adair merely observed, that though the remainder in fee vested in the obligor, yet being after many intermediate remainders, and three of them estates tail, it was too remote to be an actual seisin of the freehold and inheritance. I cannot help thinking, with deference to the very learned Judges by whom the case was decided, that if the matter had been more fully discussed it would have been differently determined. Lord Ch. J. De Grey seems to have thought that the only difficulty which could have arisen would have turned upon the question of priority, supposing all the successive tenants for life, having in them the reversion in fee, to have entered into bonds. This serves to shew in how great haste the matter was determined; for if the bond operated as a charge upon the reversion, it must have had the the same effect in respect of priority as any other incumbrance by kell. 1804. DOE V. HUTTON. 1804. DOE HUTTON. kell (a). Admitting the doctrine of that case, if the son of the testator had married his wife would have been endowed. This case is to be found in Collectanea Juridica, p. 332. But we have been supplied by my Brother Lens with a more accurate note than (a) The following note was read to the Court by Lens Serjt, on the day after the argument. Buckworth v. Thirkell,* B. R. Trin. 25 Geo. 3.-This was a case reserved from the Cambridge assizes. The form of the action was replevin. Devise to trustees and their heirs to receive the rents and profits of a certain estate, and apply them for the maintenance of Mary Barnes till she arrived at the age of 21 years, or till she married; and on her arriving at such age or marrying, to the ase of Mary Barnes, her heirs and assigns, but in case said Mary should die before the age of 21 years, and without leaving issue, remainder over. Mary married and had a child, which child died, and then Mary died before she arrived at the age of 21 years. . The question was, Whether Mary's husband was entitled to be tenant by the curtesy. Wood for Plaintiff. In order to make the husband tenant by the curtesy, the wife must be seized of an absolute indefeasible estate in fee simple or fee tail. In Payne y.Samms, Goulds, 81.and 1 Leon. 167. S. C, the distinction is taken between a limitation of an estate, as where an estate tail expires for want of issues, and a condition, which in its creation is to defeat the estate on a certain contingency, and it is held that the first is subject to the tenancy by the curtesy, but otherwise of the second, for, it is said, the condition shall relate to the defeasance of the estate. In Roothby v. Vernon, 9 Mod. 147., the devise was to Anne (the heir at law) for life, and if she married and had issue male of her body living at the time of her death, then to ruch issue male and to his heirs for ever; but if she died leaving no issue male at the time of her death, then to Gore Boothby and his heirs for ever. held that the husband of Aune, she having married and had issue, could not be tenant by the curtesy, though Anne was heir at law, and the fee descended to her in the intermediate time, and it was said by the Court," Wherever the estate is to be determined by express limitation or condition upon the death of the wife, there the husband shall not be tenant by the It was curtesy, and a case is put where a contingent estate intervening between her estate for life, and the inheritance, prevents the tenancy by the curtesy. Whitechurch for Defendant, cited Lit. sec 35 and 52. to shew that where the wife has an estate of inheritance, the busband shall be tenant by the curtesy, and if the estate exists for a moment it shall not be defeated as to this purpose by its subsequent determination. Co. Lit. 30. In Boothby v. Vernon, the heir mail of the daughter might be considered as taking by purchase. This is a condition subsequent, and shall not defeat the privilege which has once attached; 3 Lev. 152. Bro. Ab. title, Tenant by the Curtesy, pl. 14. the husband is liable to the services during the life of the wife, and therefore his privilege subsists, though the estate out of which it is derived is destroyed by the death of the wife without issue. Reply. Tenancy by the curtesy is not properly derived out of the wite's estate, for it may subsist beyond it, where by the expiration of the limitation the wife's estate is one, but it is a privilege merely. In Boothby v. Vernon the wife had a fee till the contingency. Lord Mansfield. There is no case expressly in point, let it be spoken to again. Buller J. Is the remainder-man here heir at law? It was admitted at the bar that he was, and it was agreed to add that fact to the case. 2d Argument. Le Blanc for Plaintiff. There has been an addition made to the case on a suggestion of the Court, which states that the devisee over, on the death of Mary Barnes under 21, without leaving issue, was heir at law of the testator. I am to contend that the estate in this case taken by Mary the wife was a defeasible fee simple, and that to introduce a tenancy by the curtesy, there must be a fee simple or fee tail absolute and indefeasible. In Payne v. Samms, cited in the last argument 1 Leo. 167. Goulds, 81 Anderson, 184. the distinction is expressly made in all the reporters, and they all agree, that had the condition been broken, (which was not the case there, because the woman died And see Doe d. Pratt. v. Timins, 1 B & A. 549. Doe d. Baldwin v. Rawding, 2 B & A. 441. Ray v. Ring, 5 B. & A. 561. Moody v. King, 2 Bing. 447. within than the one in print. The case is certainly very like the present. It occasioned some noise in the profession at the time it was decided; and the doctrine there laid down is very fully commented upon in the notes to Hargrave and Butler's Co. Litt. within the time of performance, and so the estate tail was regularly spent), there could not have been a tenant by the curtesy. The case of Boothby v. Vernon, 9 Mod. 147. establishes the same doctrine, and several cases are put in the determination. The cases decided on dower, which to this purpose are the same as on the curtesy, though they differ as to the necessity of actual seisin, and in the case of trust, confirm this doctrine. 1 Rol. Ab. 676. tit. Dower F. and 1 Vent. 377. To create tenancy by the curtesy it is not barely sufficient that there shall have been issue capable of inheriting. It is not sufficient in the case of joint tenants. 2 Ro, Ab. 90. Littleton, in his definition of the curtesy says, the issue must be capable of being seised "of such estate as the wife has." Those words are material, $ and exclude such an estate as this where there is a condition annexed to the wife's estate only. Tenancy by the curtesy continues in the same manner as before the stat. de donis 2 Inst. 533. 8 Co. 356. Bro. Ab. 296. Fitz. 339. Plow. 241. Estates which since the stat. de donis have become estates tail were before estates of fee simple conditional. By the birth of issue they became absolute, and that is the reason that as to the curtesy there is no difference between estates in fee and estates tail, for by the circumstance essential to the curtesy, namely the birth of issue, there remained as to this purpose no distinction between them; for in either case it was an absolute fee on which the curtesy attached. But estates created with an express condition like the present, never became absolute. This estate was defeasible, and was always defeated by the death of the wife under the age of 21 without leaving issue. Wilson, contrà. Executory limitations and devises were not in use at the time of the stat, de donis; they were not intended to alter any of the properties incident to estates and following known principles. The estate by the curtesy is not necessarily a part of the wife's estate, for it may exist after the wife's estate has expired, but it is taken out of the whole fee simple. In 1 Ro. Ab. 676. the Court was fol. 241. equally divided, and the reason given by Rolle that dower must be derived out of the husband's estate, is clearly a bad one. There is no case in point on either side. In Payne v. Samms, the decision went to establish the curtesy. This is a limitaiton conditional, and not merely a condition, for the defeasance has no relation to the time of creating the estate, as in the case of a condition merely, the breach of which avoids all mesne incumbrances. In the report in Leonard, one of the cases put is this, J. B. if he does a particular thing is to take the estate from J. S. J. S. marries, it is there said, if J. B. do the particular thing required, yet the wife of J. S. shall be endowed. Before the stat. de donis, wife tenant in tail has issue and dies, the estate reverts to the donor; yet the husband will be tenant by the curtesy, and the estate does not become an absolute fee by the birth of issue. Coke puts case of the wife having issue and being attainted afterwards, yet the husband is teuant by the curtesy. Reply. Curtesy is derived out of the wife's estate, because by the birth of issue her estate becomes absolute, and it does not properly subsist after the extinction of the wife's estate. This estate was conditional, and never turned into a fee simple. The case put by Leon cannot be law, for if it were, the wife of every mortgagee would be entitled to dower in the mortgage estate. Lord Mansfield. Tenancy by the curtesy existed berore the stat. de donis, and and the definition of it is, that the wife must be seised of an estate of inheritance, which by possibility her issue by the busband may inherit, and there must be issue born. Estates at that time were of two sorts, conditional or absolute, and curtesy applied to both equally. I cannot agree with the argument, that on the performance of the condition by birth of a child the estate becaine absolute; it was so by a subtilty in odium of perpetuity, and for the special purpose of alienation but for no other. It otherwise reverted to the donor on failure of the issue according to the original restriction. At common law the only modification of estates was by con 1804. HUTTON. fol. 241. a. The reasoning in that note is the reasoning of the learned editors entirely, and as such I cite it. It is there stated, as the result of various authorities, that with respect to limited fees, where the fee in its original creation is only to continue to a certain period, the wife is to hold her dower and the husband his curtesy after the expiration of the period to which the fee charged with the dower or curtesy is to continue; but that where the fee is originally devised in words importing a fee simple, or fee tail absolute or unconditional, but by subsequent words is made determinable upon some particular event, there, if that particular event happens, the wife's dower and the busband's curtesy cease with the estate to which it is annexed. It is not necessary for me to enter into an examination of the several cases referred to in this note. The observations there made are certainly worthy of attention; but we do not feel ourselves [ 655 ] here bound to enter into the questions respecting curtesy and dower, or to give any opinion upon the case decided in the King's Bench, from which we are all of opinion that the present case is very distinguishable. Here the lessor of the Plaintiff claims as heir to the son of the testator; but of what estate does he claim to be heir? Does he claim to be heir of a fee simple absolute? His title accrued at the time of the death of his ancestor, that is the son of the testator. No fee simple absolute descended upon him as such heir, but merely a reversion expectant on an estate for life. Now where was the seisin of the son? It is said that he had once a fee in him, and if so, why did it dition. The statute of uses introduced contingent remainders. It is not of long date that the rulers now in use have been established. I remember the introduction of the rule which prescribes the time in which executory devises most take effect to be a life or lives in being, and 21 years afterwards. It is contended that this is a conditional limitation. It is not so, but a contingent limitation, all the cases, cited go upon the distinction of their being conditions and not limitations. Daring the life of the wife she continued seized of a fee simple to which her issue might by possibility inherit. I am of opinion, that the Defendant is entitled to be tenant by the curtesy. The rest of the Court assenting, Judg ment for the Defendant. |