CURTESY. curtesy, except that estate determine during the Seisin in fact, marriage (a). When contingent remainders life-estate and her re and will not prevent curtesy. In cases where, by the same instrument, the wife takes an estate for life and the reversion in fee, but contingent freehold remainders are interposed; the interposed between her title to curtesy seems to stand thus, the legal effect of these limitations appears to be, that the lifeversion will estate will merge in the reversion for every purpose except to destroy the contingent interests (b); so that if the contingencies never happen, the wife's seisin of the fee not being disturbed, curtesy attaches (c); but if they do arise, then the consolidated estates will separate, and the wife be considered as actually seised ab initio of an estate for life only, to which curtesy does not attach. Thus, in Boothby v. Vernon (d), the Judges put this case,-suppose an estate be given to a woman for life; then to her first and other son, &c. in tail male, remainder to the heirs of her body, remainder to her right heirs: although it is clear that the woman was seised of the inheritance, yet if she have a son (as she had in that case) her husband would not be intitled to curtesy. Where her life-estate does and does not merge by descent to her But the life-estate may be merged by descent of the fee upon the wife, which will destroy the contingent remainders, and give a right to curtesy. The following distinctions seem to reconcile the cases :If the fee descend to the wife as immediate heir to band's title the person devising the several interests, it will not merge her life estate, and create a title to curtesy (e); of the fee, and of hus to curtesy. (a) Co. Litt. 29. (b) 2 Rep. 60 b. 2 Sand. 387. (c) Hooker v. Hooker, Ca. temp. Hardw. 13; and see Doe v. Scudamore, 2 Bos. and Pull. 294. (d) 9 Mod. 147. (e) Archer's case, 1 Rep. 66. Plunket v. Holmes, 1 Lev. 11. Raym. 28, and Boothby v. Vernon, 9 Mod. 147. for such a merger would destroy the will in its in- CURTESY. ception. But when the descent to her is not imme- Seisinin fact. diate, but mediate from the testator, as when the fee first descends to his son and heir, and from the son to the wife; or when it devolves upon her from a devisee in remainder in the will, so that the will is not destroyed in its birth, but its limitations commence and take effect, the descended fee will merge the life-estate, defeat the contingent remainders, and intitle the husband to curtesy (a); for merger is an accident to which a particular estate is liable after its commencement, and it appears that there is not the same reason to exempt it from that accident in the latter cases, as in the instance of an immediate descent of the fee from the testator upon the tenant for life. From the following case will appear the effect upon the title to curtesy of a settlement by lease and release before marriage of the wife's estate-tail. Feme, tenant in tail in possession, prior to her Settlement intended marriage, conveyed lands by lease and before marrelease to trustees, to the use of herself and heirs until the marriage, and, immediately afterwards, to the use of her intended husband for life, with remainder to trustees to preserve &c., remainder to herself for life, remainder to the first and other sons of the marriage successively in tail, with remainder over. Upon a question as to what interest the husband took in the lands, it was contended, and also confirmed by the Court, that a conveyance by lease and release by tenant in tail, neither barred the issue in tail nor created a discontinuance, but passed a base fee voidable by the issue in tail by entry; so (a) Kent v. Harpool, T. Jones, 76. 1 Ventr. 306. Hooker v. Hooker, Ca. temp. Hardw. 13. Fearne's Con. Rem. 266; and see infra, chap. 9, sect. 2, pl. 4. riage of wife's estatetail by lease and release, without fine, will prevent curtesy,and why. CURTESY. Seisin in fact. A term for years interposed be that the husband of the wife tenant in tail was not intitled in the present case either to a life estate under the conveyance, or to be tenant by the curtesy; not to the former, because it was not competent to his wife to pass the estate by such a conveyance to the prejudice of her issue after her death: nor to the latter, because the instant that the marriage took effect, the estate was vested in the husband during the joint lives of himself and wife, consequently there never was any one moment during the coverture when the wife was seised of an estate tail in possession (a). If a term for years only be interposed between an estate for life limited to the wife, and an estate tween wife's in fee vested in her, or if she be seised of the and reversion inheritance subject to a term for years, such chatwill not pre- tel interests will not prevent the wife's seisin of life-estate vent a seisin ritance to found cur of the inhe- the freehold and inheritance, as required, to found the right of her husband to curtesy; for the possession of the lessee is the possession of the wife, as the owner of the freehold and inheritance. tesy. To this principle the decision in De Grey v. Hutchinson (b) may be ascribed :— A being tenant in tail of estates (to which she succeeded shortly before her death) died, leaving two children, before she or her husband were able to receive any of the rents from the tenants, although they had become due. The tenants held the lands under leases. The husband filed a bill for the rents in arrear, and also claimed a title to curtesy of the estate tail. And this demand and claim were allowed by Lord Hardwicke, who considered (a) Neville v. Rivers, 7 Term Rep. 277. See farther on this subject, chap. 9, sect. 2. (b) 3 Atk. 469. the possession of the tenants-lessees to be the pos- CURTESY. session of the wife; and he observed that the ques- Seisin in fact. tion was of great consequence to husbands, since most of the lands in England were held upon leases, and tenants were backward in paying their rents, and that as a wife might have a right for a year or two, or no actual entry made, it would be hard for that reason to prevent a tenancy by the curtesy. It seems, however, safer to attribute Lord Hardwicke's decree to the circumstance of the possession of the tenants-lessees being the possession of the wife, the consequence of which would be her seisin of the inheritance in tail of the estates, and her husband's title to curtesy. It is true, that the hardship complained of by Lord Hardwicke may be unfortunate, but it would, as it seems, be equally hard upon the persons in remainder, or the issue in tail, if their interests were abridged or postponed by the permissive interposition of an estate which for its foundation wanted any of the requisites that the law has prescribed as necessary to make it available. It has been said, that if lands be given to two sisters, and the heirs of their two bodies, and one marries, has issue, and dies, living the other sister, the husband shall be tenant by the curtesy; upon the principle that the sisters were tenants in common in tail in possession (a). But this construc- No curtesy tion seems to be shaken by Littleton, in section of lands in joint 283; for he says that, if lands be given to two tenancy. men, and the heirs of their two bodies, they shall be joint tenants during their lives, with several inheritances in tail; and the case of the sisters is mentioned by Lord Coke, in his commentary upon (a) Co. Litt. 30. CURTESY. Seisin in fact. that section. If, therefore, the two sisters took interests during their lives only in joint tenancy, the husband could not be intitled to curtesy, and with this agrees the case in Rolle (a). Although there can be no curtesy of lands holden in joint tenancy, yet husbands are intitled to curtesy of lands holden by their wives as coparceners or as Contra of lands holden tenants in common; because their wives have several in coparce- inheritances, and there is no survivorship amongst them as among joint tenants (b). nary and in common. Since the possession of one tenant in common is And the possession of the the possession of all the rest, the seisin of the one other parce- will be sufficient to intitle the husband of another, a married woman, to be tenant by the curtesy. ner or tenant in common will be the possession of the wife, and intitle her husband to curtesy. Accordingly, in a case where A died, leaving a son and a daughter, A's widow entered upon an estate in fee of which he died seised, and she was seised of one part of it as tenant in dower; of another as tenant in common with her son; and of the last part as guardian in socage to him. The son went abroad and died under age, by which event the daughter became intitled to his share of the estate, and married. She and her husband applied to the mother to be let into possession of the son's part; but the mother declined, imagining that the son was living, and therefore she held the land for him. During this possession of the mother, the wife died, having had or leaving, as I presume, issue. Resort being had to the Court of Chancery, one of the questions was, whether the seisin of the mother after the son's death (she being tenant in common with the (a) 2 Roll. Abr. 90, pl. 50. See also chap. 9, sect. 2. (b) Litt. sect. 45. |