disappoint his title. An instance of this occurred CURTESY. in the following case (a). Seisin in equity. Instance A being seised in fee of certain tenements, and having two children, B and C, by a first husband, agreed by articles made prior to her second marriage when the inwith D, to give to him, during her life, the interest tent was not sufficiently of her money, and the rents of all her real estates, apparent. for maintaining the house and educating their children, until B and C attained the ages of twenty-one, or married. Upon the happening of either of which events, B and C were to receive their just proportions of money or estates as should be due to them as lawful heir to their father, A's first husband; but if A died before they came to their several fortunes, she reserved to herself the absolute disposition of all her estates and fortunes. A having had issue by D, her second husband, died, leaving him and B and C surviving. A question arose, whether D was intitled to curtesy of the real estate of which his wife died seised in fee, notwithstanding the articles? And Lord Hardwicke determined that he was; observing, that the scope and intent of the articles were only to regulate the whole estate of the wife in right of her first husband, as well the produce of the personal as the rents of the real, for the maintenance of the house and education of their children; and that the words shewed it was intended to comprise the share of the wife's children likewise, until they attained twenty-one; but the estate given to the wife was to determine upon their arriving at that age; that the transaction was nothing more than a (a) Steadman v. Pulling, 3 Atk. 423-427. Seisin in equity. CURTESY. Contract in what manner the several funds should be applied of which their estates consisted, and was never intended to abridge or disappoint the legal rights of the husband; therefore there was no reason to deny him curtesy. Election. When the wife and her husband take property under a will, and an estate tail to which she is intitled is disposed of by it, so as to put her to an election between her own estate and the testamentary disposition; if she choose her own estate, and give up the bequest, made in her favour (a), her husband will not be obliged to elect between his title, as tenant by the curtesy of the estate tail, and the bequests given to him by the will, the reasons for which appear from the case of Cavan v. Pulteney (b). A was tenant for life, with a leasing power, remainder to his son in tail, with such limitations over as to vest in B, wife of C, an estate tail. A made Instance of leases not pursuant to the power. A erroneously husband not supposing that, by acts done by himself and son, he tion between had a power by will absolutely to appoint the intailed estates, devised them, after surviving his son, to B in put to elec curtesy and benefits will. given him by strict settlement, remainder to D in like manner; and after some bequests in favour of B and C, he made D residuary legatee. B elected her estate tail, and renounced all benefits under the will. C, her husband, accepted the provisions made by it for him; and the following points were decided:-That by B's election to take her estate tail, C, her husband, was intitled to curtesy;-that C was not put to his election between what he took under the will (a) For the doctrine of Election see infrà, chap. 11, sect. 3, pl. 4. (b) 2 Ves. Jun. 545. 3 Ves. 384. Seisin in equity. and his curtesy, because he was to be considered as CURTESY. a stranger, and was intitled to curtesy as a continuation of his wife's estate, for which, in consequence of her election, she had made compensation to the devisees, by such renunciation as above; and that the remedies of the disappointed lessees were against the testator's assets under the covenants in their leases. election of her hus and the issue It is however to be inferred from the judgment Effect of the delivered in the last case, that if B had elected to wife tenant take under the will, her election, although tenant in tail upon in tail only of her own estate, would have bound band's title her husband's right to curtesy, and the interest of to curtesy the issue in tail, upon the principle that their estates in tail. being derived from her who had an absolute right of property, were in her power, or, as expressed in the judgment, "C's interest was totally in B, his wife's, power; the whole estate being in her; her election, if to take under the will, enabling her to dispose of the whole estate tail," so that after B's death her husband or the issue in tail would not according to this doctrine be permitted to claim the intailed estate, and prevent it from continuing under the limitations in the will. It was not, however, necessary to decide either of the above questions, as the wife elected to take her own estate tail, and to relinquish all benefits under the will. In the case of Long v. Long (a) the question whether the election of tenant in tail could bar the issue arose, but was not necessary to be decided, and the Court observed that the point admitted of much argument. It is however presumed, that as (a) 5 Ves. 447. Issue. CURTESY. without fine or recovery the rights of the issue in tail cannot be barred, and it would be unreasonable to take away the husband's title to curtesy without his concurrence, the mere election in pais of the wife to give up her estate tail will neither bind her husband's right to curtesy, nor the interest of the issue in tail. The birth of what issue necessary to intitle the husband to curtesy. Must be born alive during the marriage, and be ca III. With respect to the issue to be born, in order to intitle the husband to be tenant by the curtesy : They must be born alive during the marriage; any proof of which circumstance will be received and submitted to a jury; but if, by the death of the wife in child-bed, it be necessary to resort to the Cæsarean operation, the birth of such child will not intitle the husband to curtesy; because the issue not being born during the coverture, or the wife's life, the interest in the estate vested in the child whilst in embryo, which will not be devested for the husband's benefit; and in pleading, it is necessary for him to allege, that he had issue during the marriage, which in this case he cannot do (a). The issue, when born alive, must be inheritable to pable of in- the estate from the mother, either immediately or heriting the wife's estate, by possibility. and must take it by descent. Accordingly, if, before the statute of Westminster the 2d (b), lands had been given to husband and wife, and the heirs of their two bodies, and the husband died after issue born, and then the wife, continuing seised of such estate, took another husband, and after having issue by him also died; the second (a) 8 Rep. 34, 35. Co. Litt. 29 b. Edw. 1, c. 1. (b) De Don. Cond. 13 Issue. So that the husband would have been tenant by the curtesy, CURTESY. and for this reason-the feme-donee, after birth of issue, was considered by the common law as acquir ing by that event an estate of inheritance capable of disposition and forfeiture, and transmissible to her lineal descendants in infinitum; for as she might have substituted strangers to be absolute owners of the estate by express alienation, so all the lineal heirs of her body which she might ever have, were, by construction of law, intitled to inherit to her, after the birth of the first inheritable child, as a benefit and incident tacite annexed to her estate (a); consequently, the second husband, in the case proposed, was intitled to be tenant by the curtesy. But the issue of selaw has been altered by the above statute, so that if cond marriage of wife, a married woman, donee in special tail, have issue by she and her one husband, and afterwards issue by another, and first husband being donees then dies during the life of the second husband, he in tail, will will not be intitled to curtesy; because the children not intitle of the last marriage cannot by possibility inherit the husband wife's estate. Again— Suppose a wife, tenant in tail general, and her Nor if wife husband levy a fine, and retake an estate to them be donee in tail general, and the heirs of their two bodies, and have issue, and and she and first husband then the husband dies, and his widow marries again, levy a fine, and has issue, and dies, after which the second hus- and retake an estate in speband claims curtesy upon the supposed remitter of cial tail. his wife to her first estate in tail general; it seems Reasons. that such claim cannot be allowed, for as the wife is estopped by the fine from claiming her first or old estate, so is the second husband, who must derive second to curtesy. (a) Perk. sect. 465. 8 Rep. 35 b. Co. Litt. 19. |