CURTESY. Seisin in equity. In general the same rules as to the wife's seisin prevail at law and in equity. Curtesy of a trust estate. 3. Of seisins in equity. From the natures of the property before-mentioned to be subject to curtesy (a), it appears that such title attaches itself to equitable seisins, as well as to legal estates. And it must be noticed, that, in general, legal and equitable interests receive the same constructions, or have the like effects given to them in relation to the present subject, for the purpose of preserving at law and in equity the rules of decision and of property uniform and consistent, so that an equitable seisin or estate, which, if legal, would have imparted to the husband a title to curtesy, will have the same consequence or effect in equity; except where a strict adherence to the rule would defeat the intentions of the settlors or devisors of the property; instances of which are afterwards stated. The first instance that I shall mention, is curtesy of a trust-estate A devised his lands to trustees in fee, in trust to pay his debts, and to convey the surplus to his daughters equally. The youngest daughter married, and died, leaving an infant son. Question: whether her surviving husband was intitled to curtesy of her share of the surplus lands? And Lord Cowper, Ch. decreed in the affirmative, observing, that trust estates were to be governed by the same rules as legal estates; and that as the husband would have been tenant by the curtesy, had that case been a legal estate, so he should be of that trust estate (b). The following is an instance of curtesy of an equity of redemption (a) Suprà, p. 6. (b) Watts v. Ball. 1 P. Will. 108. See also 8 Rep. 96. Seisin in equity. A being seised in fee of lands, mortgaged the in- CURTESY. heritance to B, and then married C. A, continuing in the possession of the estate, died, pending the mortgage, leaving a son by her husband. The Of an equity question was, whether the husband was intitled to of redempcurtesy of the equity of redemption? And Lord tion. Hardwicke, Ch. decided in his favour, because an equity of redemption was to be considered an estate in the land, was transmissible from ancestor to heir, might be granted, intailed, devised, or mortgaged, and might be barred by a common recovery; also, because the person intitled to the equity of redemption is owner of the land, and, therefore, in equity seised of the estate; a seisin perfected in the present case by the wife's possession (a). It is worthy of observation, that in the last case the four requisites to a tenancy by the curtesy concurred, (i. e.) marriage, issue, seisin, and the wife's death. executory. In equity the rule is, that what is agreed to be Of trusts done, is considered as actually completed. In consistency with this rule, if money be vested in trustees, by will or otherwise, in trust to purchase lands, with a declaration of trusts which would give the wife an equitable estate tail, although the money be not converted into real property during the life of the wife, yet her husband will be intitled to curtesy. Accordingly, £500 were agreed by marriagearticles to be invested in the purchase of freehold lands of inheritance, to the use of the husband for life, remainder to trustees to preserve, &c. then for (a) Casborne v. Scarfe, 1 Atk. 603. 7 Vin. Abr. 156. S. C. Seisin in equity. CURTESY. all the children of the marriage, as the husband and wife, or the survivor of them, should appoint; and if no appointment, for all the children equally; but if one only, then to such only child in tail, with remainder to the husband in fee. There was but one child of the marriage, a daughter, who married B, and had issue. B having survived his wife, the question was, whether he was intitled, as tenant by the curtesy, to have the interest of the £500 during his life; which sum was to be considered as land? And Lord Hardwicke, Ch. was of opinion that the husband was so intitled; because if the money had been actually invested in land, the wife would have been tenant in tail of the estate, and her husband intitled to curtesy; so also he should be of the money in which she had an equivalent interest (a). But when an intention manifestly appears that the husband should have no interest in the estate settled upon his wife, and she is converted into a feme sole the settler to during her life; in such cases, whether the equitable inheritance devolve to her as heir, or by limitation immediately, or after intermediate limitations, her husband will not be intitled to curtesy. If the trust be executory, i. e. to be carried into effect in equity, by directing conveyances or otherwise, the Court will so model the limitations as to prevent curtesy. accordingly. If the trusts be not executory, still it seems, for the reasons after mentioned, that curtesy cannot be claimed. Husband excluded from curtesy when he was intended by take no in terest in the property; and equity in performing articles will order a settlement Thus, in a case where lands were devised to A in trust (after raising portions under a settlement, and (a) Cunningham v. Moody, 1 Ves. sen. 174. Seisin in equity. payment of debts and funeral expenses) to convey CURTESY. them to the use of the testator's daughter for life, so as she alone, or such person as she might appoint, should receive the rents, and so as her husband did not intermeddle with them; and after her death, in trust for the heirs of her body. It was determined by Lord Hardwicke, that A's husband was not intitled to be tenant by the curtesy (a). It clearly appeared in the last case that the husband was meant to be excluded from all interest in his wife's estate. It is an instance of an executory trust, and an authority that when the intention to convert the wife into a feme sole in respect of her real property is sufficiently apparent, an equitable estate tail or reversion in fee in her is not inconsistent with a trust for her separate use for life; and that such separate estate is not merged in the general trust of the inheritance. Considering the rule in equity to An equitable be so established, it is a necessary consequence that the equitable separate estate for life being kept distinct during the coverture from the equitable reversion or remainder in tail, the wife will not have had at any period during the marriage, that actual seisin of the equitable inheritance necessary to give rise to curtesy. Upon this doctrine the following case ap- to curtesy. pears to have been decided. estate for the wife's sepa rate use for life will not unite with the equitable tail or fee given to her, so as to intitle her husband A devised all his real estates to trustees, upon An instance. trust to apply the rents to and for the sole and separate use of his daughter B, wife of C, for life, and at her disposal, and not to be subject to C's debts, power, or control; but that her receipts, not (a) Roberts v. Dixwell, 1 Atk. 607. Seisin in equity. CURTESY. withstanding her coverture, should be effectual discharges for the same; and, upon further trust, to permit B by any deed or writing to be executed by her as therein mentioned, notwithstanding her coverture, to give, devise, and bequeath the said estates to such persons as she should think fit, she having a particular regard to his poor relations in Cornwall. His residuary personal estate he bequeathed to B's sole and separate use. B was the testator's heir at law, and there was issue of her marriage with C. A testamentary appointment made by B, whilst an infant, was declared void; and at her death she was possessed of the equitable reversion in fee, subject to the power of appointment, and to the trust for her separate use for life. The question was, whether under these circumstances, her husband C was intitled to be tenant by the curtesy? And Lord Hardwicke, Ch. decided in the negative; observing, that although the equitable inheritance descended upon the wife until the execution of the power, yet that her father, the testator, had made her a feme sole, and given the profits to her separate use, her husband, therefore, could have no seisin during the marriage, either of the lands or of its profits; and that an equitable seisin in him would be directly contrary to the testator's intention, so that neither in law nor in equity the husband was tenant by the curtesy (a). To exclude curtesy the intent must be clear. When, however, the intention to prevent curtesy is not clear, Courts of Equity so far favour the husband's right, that if, from the wife's interest, he is or would be at law intitled to curtesy, they will not (a) Hearle v. Greenbank, 3 Atk. 697, 716. |