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as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life, which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature.
III. Tenant by the curtesy of England is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or feetail, and has by her issue, born alive, which was capable of inheriting her estate. In this case, he shall, on the death of his wife, hold the lands for his life, as tenant hy the curtesy of England.(c)
This estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it is said in the Mirrour(d) to have been introduced by king Henry the First; but it appears also to have been the established law of Scotland, wherein it was called curialitas,(e) so that probably our word curtesy was understood to signify rather an attendance upon the lord's court or curtis, (that is, being his vassal or tenant,) than to denote any peculiar favour belonging to this island. And therefore it is laid down(f) that by having issue, the husband shall be entitled to do homage to the lord, for the wife's lands, alone : whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of king Henry III.(g) It also appears(h) to have obtained in Normandy; and was likewise used among the ancient Almains or Germans.(0) And yet it is not generally apprehended to have been a consequence of feodal tenure,(k) though I think some substantial feodal reasons may be given for its introduction. For if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to *the profits of the lands in order to maintain it; for which reason the heir-apparent of a tenant
[*127 by the curtesy could not be in ward to the lord of the fee, during the life of such tenant.(0) As soon therefore as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate: and this estate, being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant.
There are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of the wife.(m) 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin, or possession of the lands; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And therefore a man shall not be tenant by the curtesy of a remainder or reversion.10 But of some incor
() Litt. 32 35, 52.
Lindenbrog. LL. Alman. t. 92.
F. N. B. 143. © Pat. I1 H. III. m. 30 in 2 Bac. Abr. 659.
(*) Co. Litt. 30.
Grand Coustum.c. 119.
?l should rather think, with Mr. Wooddesson, that this estate took its name from its peculiarity to England, and that it was afterwards introduced into Scotland and Ireland. 2 Waodd. 18. Tenant by the curtesy of England perhaps originally signified nothing more than tenant by the courts of England, as in Latin he is called tenens per legem Anglia. See stat. pro tenentibus per legem Angliæ. App. to Ruff. 29.-Chitty.
8 2 Saund. 45, n. n.(5.) Courts of equity, however, allow curtesy of trusts and of other interests, which, although mere rights in law, are deemed estates in equity. 1 Atk. 603. 1 P. Wms. 108. Lord Redesdale, on 2 Sch. & Lef. 388, suggests this reason for the distinction between dower and this claim,-viz., that parties had been acting on this supposition, that the creation of trust-estates would bar dower, and that it was necessary for the security of purchasers, mortgagees, and other persons taking the legal estate, to depart in cases of dower from the general principle of courts of equity, which is, in acting upon trusts to follow the law, but it was not necessary in cases of tenancy by the curtesy, because no such practice had prevailed.—CHITTY.
9 Entry is not always necessary to an actual seisin or seisin in deed; for, if the land be in lease for years, curtesy may be without entry or even receipt of rent, the possession of the lessee being the possession of the husband and wife. Co. Litt. 29, a. n. 3. 3 Atk. 469. But if the lands were not let, and the wife died before entry, there could be no curtesy. Co. Litt. 29.-Chitty. 10 A man will not be entitled to tenancy by the curtesy of, nor a woman to dower out
poreal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife : as in case of an advowson, where the church has not become void in the lifetime of the wife : which a man may bold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem.(n) If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she herself has any title: and since she could never be rightfully seised of the lands, and the husband's title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy:(0)" 3. The issue must be born alive. (*) Co. Litt. 29.
(5) Co. Litt. 30. Plowd. 263. of, a reversion or remainder expectant upon an estate of freehold; but upon a reversion ere pectant upon an estate for years, both these rights (of dower and of curtesy) accrue, (Stoughton vs. Leigh, 1 Taunt. 410;) for the possession of the tenant for years constitutes à legal seisin of the freehold in reversion. De Gray vs. Richardson, 3 Atk. 470. Goodtitle vs. Newman, 3 Wils. 521.-Chitty.
11 The words “ actual seisin or possession of the lands” are satisfied by the possession of a tenant for years; for if the land is demised for a term of years, his possession is the possession of the wife, and there may be curtesy, though she dies before entry or even receipt of rent. Co. Litt. 29. Harg. n. 162. But if the lands were not let, and descended on the wife, who died before entry, there could be no curtesy. Co. Litt. 29.
With respect to the case of the advowson, if the author means, as his words seem to import, that a husband shall be tenant by the curtesy of it under the circumstances stated, because from the nature of the hereditament it is impossible to have actual scisin of it at any time, he seems not to be warranted by the law or his authority. Presentation gives seisin of an advowson; and all that lord Coke says is, that he shall be tenant, even though there has been no vacancy, because he could by no industry attain to any other seisin ; that is, he could not bring about a vacancy at any time that he pleased.
The position which follows, respecting the husband of an idiot, has been questioned. Lord Coke's argument, as well as that in Plowden, is that the titles of the tenant by curtesy and of the king begin at one instant, (the office which finds her an idiot having relation back to her first seisin,) and then that the title of the king shall be preferred. Upon this it has been remarked that there is not any such concourse of titles; the husband's title not being consummate till the wife's death, when the king's title determines. Co. Litt. 30. Harg. n. 175. The argument in the text, that an idiot can never be rightfully seised of lands, is directly at variance with that just stated, which assumes the seisin of the idiot. Lord Coke reckons idiots among those who have power to purchase and retain lands or tenements, (Co. Litt. 3, b.,) or to be grantees of a copyhold estate. Co. Cop. s. 35. Indeed, the old writ de idiota inquirendo et examinando proceeded upon the same assumption, and the king took the custody of the lands as of lands of which the idiot had been seised. F. N. B. 232.
But the same conclusion may be rested upon the principle that there can have been no valid marriage with an idiot-a principle which it is the more remarkable that the author should have overlooked here, as only three pages later he makes use of it to ex: clude the wife of an idiot from dower.
In vol. 1, p. 302, an idiot is defined to be one who hath had no understanding from his nativity. If that definition be correct, there can be no question but that such a person could never contract a valid marriage. But I imagine that a person born sane might, from external injury, or internal disease gradually aggravated, be reduced to idiotey, as opposed to lunacy or madness, if such a case would come within the legal notion of idiocy; still, a marriage contracted while the person was sane, and seisin then had, with issue, ought on principle to entitle the husband to curtesy ; because in such a case no one of the principles of exclusion would apply: the husband's title would be prior to the king's, there would have been sufficient seisin, and the marriage would not have been invalid.-COLERIDGE.
In Connecticut, Pennsylvania, and some other States, actual seisin is not necessary in any case to entitle the husband to curtesy. It is sufficient that the wife had title and a potential seisin or right of seisin; that is, the right to demand and recover the immediate possession thereof. Bush vs. Bradley, 4 Day, 298. Kline vs. Beebe, 6 Conn. 494. Stoolfors vs. Jenkins, 8 S. & R. 175. Day vs. Cochran, 24 Miss. 261. The rule requiring that the wife should have actual seisin is not applied in this country to wild and uncultivated lands. When she is owner of such lands, she is deemed in possession, so as to entitle her husband to become tenant by the curtesy, though there has been no actual possession by either of them during the coverture. (Jackson vs. Sellick, 8 Johns. 262. Davis vs. Mason, 1 Peters, S. C. 506. Guion vs. Anderson, 8 Humph. 298. Wells vs. Thompson, 13 Ala.
Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of its being born alive; but it is not the only evidence.(p) The issue also must be born during the life of the mother; for if the mother dies in labour, and the Cæsarean operation is performed, the husband in this case shall not be tenant by the *curtesy; because, at the instant of the mother's death, he was clearly not entitled, as having had
[*128 no issue born, but the land descended to the child while he was yet in his mother's womb; and the estate, being once so vested, shall not afterwards be taken from him.) In gavelkind lands, a husband may be tenant by the curtesy, without having any issue.(r) But in general there must be issue born: and such issue as is also capable of inheriting the mother's estate.(8) Therefore if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male.(t) And this seems to be the principal reason, why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised: because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife : but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised; and therefore as the husband hath never begotten any issue that can be heir to those lands,12 he shall not be tenant of them by the curtesy.(u) And hence we may observe, with how much nicoty and consideration the old rules of law were framed; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture; for, whether it were before or after the wife's seisin of the lands, whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy(w) The husband by the birth of the child becomes (as was before observed) tenant by the curtesy initiate,(x) and may do many aets to charge the lands, but his estate is not consummate till the death of the wife : which is the fourth and last requisite to maku a complete tenant by the curtesy.(y)"
(P) Dyer, 25. 1 Rep. 34.
(u) Co. Litt. 40.
(0) Co. Litt. 29.
Litt. & 56.
793,) except in Kentucky. Neely vs. Butler, 10 B. Mon. 48. And it seems that the rulo requiring actual seisin applies only to cases in which the seisin is not complete until entry is made; as when the estate descends or is devised to the wife, and not when it is acquired by deed, and is transferred into possession by the statute of uses. Jackson vs. Johnson, 5 Cowen, 74. It is not necessary that there should be seisin and issue at the same time; and therefore, if the wife become seised of lands during the coverture, and then be disseised and then have issue, the husband shall be tenant by the curtesy of those lands. So if the wife become seised after issue born, though the issue die before her seisin. Jackson vs. Johnson, 5 Cowen, 74. A mere naked seisin by the wife as trustee will not suffice to make the husband tenant by the curtesy, though she has the beneficial interest in the reversion. Therefore, where a woman held a ground-rent in fee in trust for another during his life, and she afterwards married and died, and then the cestuy que trust died, the husband was held not to be entitled to the rent as such tenant. Chew vs. Southwark, 5 Rawle, 160. A husband is not entitled to an estate by the curtesy out of land devised to a trustee for the sole and separate use of the wife in fee-simple. Cochran vs. O'Hern, 4 W. & S. 95. Stokes vs. MeKibbin, 1 Harris, 267. A husband who has conveyed land to another in trust for his wife is not entitled on her death to a tenancy by the curtesy in the trust-estate. Rigler vs. Cloud, 2 Harris, 361.-SHARSWOOD.
12 This is not stated with our author's usual precision. The issue, in the case put, might be heir to the lands, though he could not take as heir to his mother, but as heir to his ancestor, who was last actually seised. See post, chapter 14 of this book, pp. 209, 227; see also 1 Inst. 11, b.-CHITTY.
13 It may be necessary to observe, if the child which the husband has by his wife be capable, and have a mere possibility of inheriting, the husband shall be tenant by the curtesy. Thus, suppose a woman seised in fee of lands marry and have a son, after which the husband dies, and she marries again and has a child by the second husband, here the husband shall be tenant by the curtesy, although there is but a mere possibility
*IV. Tenant in dower is where the husband of a woman is seised of
an estate of inheritance, and dies : in this case, the wife shall have the third part of all the lands and tenements whereof he was seised at any time during the coverture, to hold to herself for the term of her natural life.(2)
Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos: which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance: nor indeed is there any thing in general more different than the regulations of landed property according to the English and Roman laws. Dower out of the lands seems also to have been unknown in the early part of our Saxon constitution; for in the laws of king Edmond, (a) the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands; with a proviso that she remained chaste and unmar. ried ;(6) as is usual also in copyhold dowers, or free bench.16 Yet some(c) have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feodal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens, tertia,(d) and dotalitium) by the emperor Frederick the Second;(e) who was contemporary with our king Henry III. It is possible, therefore, that it might be with us the relic of a Danish custom: since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the Great, out of gratitude to *130]
the Danish ladies, who sold all their #jewels to ransom him when taken
prisoner by the Vandals.(f) However this be, the reason which our law gives for adopting it, is a very plain and sensible one; for the sustenance of the wife, and the nurture and education of the younger children.(9)
In treating of this estate, let us, first, consider who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how dower may be barred or prevented.
1. Who may be endowed. She must be the actual wife of the party at tho Litt. & 36.
Crag. I. 2, t. 22, 9. () Somner. Gavelk. 51. Co. Litt. 33. Bro. Dower, 70. (°) Wright, 192.
Mod. Un. Hist. xxxii. 91.
that the child which the wife had by her second husband should ever inherit the estate, the child by her first husband being alive. Prest. Est. 516.-ARCHBOLD.
The Real Property Commissioners, in their first Report, proposed to make some alterations in the law of curtesy, the principal of which were to abolish the rule that the issue must be born alive, and to restrict the estate to an undivided moiety of the lands; and a bill was brought in, in the session of 1831, to carry these recommendations into effect. It was, however, suffered to drop; and it may therefore be considered that the law on this subject will not be unsettled.-STEWART.
11 But of gavelkind lands a woman is endowed of a moiety while she remains chaste and unmarried. Co. Litt. 33, b. Rob. Gavelk. 159. And of borough-English lands the widow is entitled for her dower to the whole of her husband's lands held by that tenure. But of copyhold lands a woman is endowed only of such lands whereof her husband was seised at the time of his death. Cowp. 481. And her title to dower or free-bench is governed by the custom: according to its authority she may take a moiety, or three parts, or the whole, or even less than a third; but it must be found precisely as it is pleaded. Boraston vs. Hay, Cro. Eliz. 15.-Chitty.
15 The distinction between free-bench and dower is, that free-bench is a widow's estate in such lands as her husband dies seised of; whereas dower is the estate of the widow in all lands of which the husband was seised during the coverture. Godwin vs. Winsmore, 2 Atk. 525 ; see also Carth. 275. 2 Ves. 633, 638. Cowp. 481; and Gilb. Ten., ed Watkins, n. 164. The custom of free-bench prevails in the manors of East and West Enborne, and Chadleworth, in the county of Berks; at Torr, in Devonshire; Kilmersdon, in Somersetshire; and other places in the west of England.-Chitty.
18 The lawfulness, and even the fact, of a marriage, it has been said, can be established in no other way but by the bishop's certificate. Robins vs. Crutchley, 2 Wils. 125. But when the marriage has not been had within any of our bishop's dioceses, or where, from
time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos.(h) But a divorce a mensa et thoro onlý doth not destroy the dower;() no, not even for adultery itself by the common law.(k) Yet now by the statute West. 2.(I) if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her.17 It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy;(m) but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. By the antient law, the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde,(n) that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may; though Britton(0) gives it another turn: viz., that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. VI. c. 12 abated the rigour of the common law in this particular, and allowed *the wife her dower. But a subsequent statute() revived this severity against the widows of traitors,
[*131 who are now barred of their dower, (except in the case of certain modern treasons relating to the coin,)(9) but not the widows of felons. An alien also cannot be endowed, 18 unless she be queen-consort; for no alien is capable of holding lands.(r) The wife must be above nine years old at her husband's death, otherwise she shall not be endowed :(s) though in Bracton's time the age was indefinite, and dower was then only due “si uzor possit dotem promereri, et virum sustinere."(t)
2. We are next to inquire, of what a wife may be endowed. And she is now by law entitled to be endowed of all lands and tenements, of which her husband was seised in fee-simple or fee-tail, at any time during the coverture; and of which any issue, which she might have had, might by possibility have been heir.(u)" . Therefore, if a man seised in fee-simple hath a son by his first wife, (*) Bract. I. 2, c. 39, & 4.
() C. 110.
(p) 5 & 6 Edw. VI. c. 11. (*) Yet, among the ancient Goths, an adulteress was (9) Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26. punished by the loss of her dotalitii et trientis ex bonis mobilibis viri. Stiernh. l. 3, c. 2. () 13 Edw. I. c. 34.
(*) Litt. 36.
1) L. 2, c. 9, 3. (*) P. C. b. 3, c. 3.
(*) Litt. 2 36.
Co. Litt. 32.
15 & 16 Geo. II. c. 28.
(1) Co. Litt. 31.
(*) Co. Litt. 31.
any particular circumstances, the question seems not proper to be tried by the bishop's certificate, there, in the language of chief-justice Eyre," the common law, out of its own inexhaustible fountain of justice, must derive another mode of trial; and that mode is the trial by the country.” Ilderton vs. Ilderton, 2 H. Bla. 156. The same doctrine, founded on obvious good sense, had been previously laid down in the case of The Protector vs. Ashfield, Hardr. 62.-Chitty.
17 And in a case where John de Camoys had assigned his wife, by deed, to Sir William Paynel, knight, which lord Coke calls concessio mirabilis et inaudita, it was decided in parliament, a few years after the statute was enacted, notwithstanding the purgation of the adultery in the spiritual court, that the wife was not entitled to dower. 2 Inst. 435. This is an indictable offence, being a great public misdemeanour.–Chitty.
18 This statement is too general. Alien women, whose marriage with Englishmen has not taken place with license from the king, are not capable of acquiring dower, for the reason assigned by our author. But, in consequence of a petition from the commons, an act of parliament was made in the 8th year of the reign of Henry V., (and which, though it is not printed amongst the statutes, is preserved in the 4th volume of Rot. Parl. pp. 128, 130,) by which all alien women who from thenceforth should be married to Englishmen, by license from the king, are enabled to have dower after their husband's death, in the same manner as Englishwomen. And if an alien woman be naturalized, she thereby becomes entitled to dower out of all lands whereof her husband was seised during the coverture, (see vol. 1, p. 374;) but, if she be only made a denizen, she will have no claim to dower out of lands which he aliened before her denization. Menvil's case, 13 Rep. 23.-Chitty.
19 The word “sole" should be inserted before "seised" in this description, because, if the husband is seised jointly with another person, that other person's interest, being de rived from the original grant to the husband and herself, is prior to the wife's claim;