daughter) was the seisin of the daughter in a sense CURTESY. sufficient to make the husband tenant by the curtesy Seisin in fact. of the daughter's part of the estate? And the Court adjudged that it was sufficient, upon the principle that the entry and possession of one tenant in common is that of the other (a).

its determi

lifetime.

It is not necessary that the wife's estate of in- The effect of heritance should continue during the lifetime of nation in the her husband; for whether the issue die before her husband's or afterwards during the husband's life, still the title to curtesy which commenced on the birth of such issue will continue during the husband's life; because it was a legal incident and privilege; and so inseparable from the estate, that it cannot be restrained or prevented by any proviso or condition (b). And since the husband's title was initiate upon Curtesy cannot be prehaving issue, the law does not permit it to deter- vented by a mine afterwards by the death of the issue; that proviso or event being the act of God, and within the wellknown legal maxim.

condition.

Thus, a man having issue two daughters, gave An instance lands to the elder and the heirs of her body, with

remainder to the younger and the heirs of her body.
The elder daughter married, had issue born alive,
who died, and then she died.
The younger

daughter entered upon the husband of the elder,
who claimed as tenant by the curtesy. To that
claim it was objected, that since the wife's estate
was determined, so also must be the estate of her
husband, which was derived out of it; and that it
could not continue beyond the expiration of the
primitive estate. But the Court decided that the

after deterof curtesy mination of

wife's estate.

(a) Sterling v. Penlington, 7 Vin. Abr. 150, pl. 11. (b) 6 Rep. 41.

CURTESY.

husband was intitled to hold the lands during his

Seisin in fact. life as tenant by the curtesy (a).

Instances of husband not being so intitled of

In the last case, it is to be noticed, that after the inheritance of the wife in the thing given ceased, the subject itself still remained, and would have passed into the possession of another person, if the law had not interposed the estate by curtesy. But when the thing itself is destroyed or becomes extinct by the determination of the wife's estate in it, then the husband's title to curtesy determines of necessity at the same time. To exemplify this in the instance of rents

Suppose a woman, being seised in fee of lands, grant an estate tail, reserving to herself and heirs a rent, and then marries and has issue; afterwards the served upon donee in tail dies without issue, whereupon the an estate tail reversion in fee revert; to the wife; and then granted by

a rent re

wife before the wife dies. Her husband will not be intitled to marriage,

tail deter

mines during

when the in- curtesy of the rent; because, as Lord Coke says, the rent newly reserved is by the act of God dethe marriage. termined, and no state of it remains (b); and it may be added, that the rent necessarily became extinct, because by the death of the donee in tail without issue, there was no person charged with, or obliged to continue the payment of it; and the husband receives no injury, since he will hold the estate in tail survive curtesy, if by entry his wife died seised. But supthe wife, and pose the donee in tail had survived the wife, and died the husband, without issue before the husband, the husband's curthe latter will tesy would have ceased, for the rent having become extinct, curtesy could not be continued as in other rent or the cases. And with respect to the lands, the wife having been seised during the marriage of a reversion

If donee in

die before

not enjoy curtesy

either of the

estate.

(a) Paine's Case, 8 Rep. 34; and see Steadman v. Pulling, 3 Atk. 423, 427 stated infrà in this section. (b) Co. Litt. 30.

upon an estate tail, curtesy could not attach upon CURTESY. them, as has been before noticed.

Seisin in fact.

Similiter if the grant had been for the

life of the grantee only, and the rent

reserved to her and her

So also, if the woman had granted an estate for life only, reserving to herself and her heirs a yearly rent, and such freehold estate continued during the marriage; then it seems that the husband would not be intitled to curtesy either of the rent or the reversion: not of the reversion, because it was expectant onestate of freehold; nor of the rent, as well heirs. because it was incident to such reversion, and must go with it to the heir or devisee discharged of curtesy as its principal the reversion was, as also because the rent was not reserved out of an estate of inheritance, but was something in the nature of an interest pur autre vie, and could not be considered as a rent in fee (a).

But where there is no such necessity as before mentioned, for a rent of which the wife is seised in fee or in tail to become extinct, such rent will fall within the same rule of law which we have seen to be applicable to real estates.

curtesy,

where the rent deter

mines.

Thus if a person, seised in fee of a rent, grant it Instances of in tail to a woman, who marries, and has issue which dies, and then the wife dies, without issue, before her husband, he shall be tenant by the curtesy; because, as Lord Coke observes, the rent remains; i. e. although the wife's inheritance ceased by her death without issue, the reversion in the rent resulted to the grantor, subject to the husband's curtesy, which the law gave as incident to the wife's seisin of the rent in tail, and which did not become extinct of necessity, as in the other case.

The determination, as it seems, would have been

(a) Co. Litt. 32.

VOL. I.

C

CURTESY.

the same if the grantor of the rent had not been

Seisin in law. seised, but had created it at the time of the grant. The following extract is added in a note to the case last stated by Mr. Hargrave, in his Coke upon Littleton, from Lord Hale's manuscript :

Seisin in law.

Sufficient of an advowson or rents.

"So if it was a rent de novo granted in tail, and the wife dies without issue, the husband shall be tenant by the curtesy (a).”

This subject will be resumed in the fifth section, which treats of the defeazance of the husband's title by the eviction of his wife's estate.

2. Of seisins in law.

The necessity of actual seisin by the wife of the inheritance in such species of property of which seisin in fact can be obtained, in order to found a title to curtesy, has been before shewn (b): hut where the inheritances lie in grant, so as to be incapable of the same seisin as lands or tenements, it cannot be required. The law must be satisfied with the best seisin of which the nature of the property admits; and it will even dispense with that, when there was no possibility of obtaining it. Instances of which I shall now proceed to produce:If a a person seised of a rent, or of an advowson in fee, have issue, a married daughter, and dies; and then she, having issue, dies before the rent becomes due, or the living becomes vacant, her husband will be intitled to curtesy, notwithstanding his wife had only a seisin in law; for in the case proposed, Impotentia excusat legem, and actus Dei nulli facit injuriam (c).

(a) Co. Litt. 30. (b) pp. 8 and 9. (c) Co. Litt. 29. Perk.

sect. 469. Fitz. N. B. 149. D. 2 Br. Tenant by the Curtesy, pl. 2.

Except there

It is indeed stated in the 468th section of Perkins, CURtesy. that notwithstanding an advowson in gross becomes Seisin in law. vacant during the marriage, and the wife die after the six months for presentation have elapsed, and before presentment, &c. so as that the ordinary presents by lapse, the husband shall nevertheless have be wilful the next avoidance as tenant by the curtesy. Such negligence. position, however, may be reasonably doubted, since seisin by the wife might have been obtained by the presentation of herself or husband, and it was owing to their culpable neglect that they lost it. It is obvious, therefore, that neither of the principles upon which actual seisin is excused, viz. impotentia excusat legem, or actus Dei nulli facit injuriam applies to the case proposed.

And except

the one be appendant and the other

incident to a

manor.

If, however, an advowson be appendant to a manor, and seisin be not obtained of that manor during the marriage, the above rule of law becomes inapplicable; for as seisin of the principal was necessary to give a title to curtesy, if that be wanting, no such Reason. title being deducible to the principal, it must also fail as to adjuncts, or to such things as depend upon or go with the principal.

Thus, if A be seised of a manor to which an advowson is appendant, and dies, having issue a daughter, who takes a husband, and dies before entry into the manor, it seems that the husband shall not be tenant by the curtesy of the advowson, nor of the rents incident to the manor, because he had not seisin of the principal (a).

(a) Note to Co. Litt. 29. Hale's MSS.