CURTESY. Issue. But if she be seised in fee before se his title from her; this being so, and since the issue of the second marriage never could by possibility inherit, from the wife, the estate taken back and settled in special tail upon the issue of the first marriage, the second husband's title to curtesy must be defective and fail (a). But if a single woman, seised of lands in fee simple, marry, have issue, and her husband dies; and she, being so seised, take a second, has issue by though there him, and then dies, living the issue of the first hus cond marriage, al be issue of the first, her band, the second husband shall be tenant by the second hus- curtesy, causa patet (b). Again band on birth of issue shall If land be given to a woman, and the heirs male have curtesy. of her body, and she have issue only a daughter, and If the wife be die; or if the limitation be to her and the heirs seised in tail female of her body, and she have issue only a son; in female, birth of a son will neither of these cases can the husband claim curtesy, because in neither of them was there issue born who could by possibility inherit the estates (c). not give a title to curtesy. Also if the For the same reason, if the issue claim by purissue be in- chase and not by descent, the husband's title to titled as chasers, cur- curtesy will be defective. pur tesy will not attach. Thus, A devised to B, a married woman, lands in fee simple; but if B died before her husband, he then gave such husband £20 a year for life; with remainder, as to the lands, to B's children. B died before her husband, leaving children; and it was adjudged, that the husband was not intitled to curtesy; because the issue did not claim from the wife by descent, but under the will as purchasers (d). (a) 2 Bro. Tenant per le Curtesy, 1. (6) Bro. Curtesy, 8. Perk. sect. 466. (c) Co. Litt. 29, b. (d) Sumner v. Partridge, 2 Atk. 47. There is an exception to the rule which requires CURTESY. heritable issue to be born during the marriage. Issue. title by cur By the custom of gavelkind, a husband may be tenant by the curtesy without the preliminary of Gavelkind. having issue by his wife (a); but this custom is not Instance of so beneficial as the common law right; for tenant by the curtesy under the custom is intitled to a moiety of the wife's estate only, and which ceases or is forfeited by his second marriage (b). tesy when there never was issue. at any time To intitle the husband to curtesy, it is sufficient if Birth of issue the issue be born at any period during the marriage; during the and for this purpose it is immaterial whether they marriage come into existence before the seisin of the wife or afterwards (c). Accordingly If husband and wife have issue, and the issue die, and then lands of inheritance descend to the wife, of which she actually becomes seised by entry; in that case the husband upon his wife's death will be intitled to curtesy (d). But the time of having issue may be material in some instances, in regard to the husband's title to curtesy, as it has been observed, and will afterwards appear (e). sufficient; they die beand although fore the de scent of the estate upon the wife. Circum stances under which the time of birth of an heritable issue is ma terial. feoffment Thus, if the husband, after having issue, make a feoffment in fee, and then the wife dies, the feoffee shall hold the land during the husband's life; be- Husband's cause, by the birth of issue, he was intitled to after issue curtesy; which beneficial interest passed by the good for his feoffment (f); but if the feoffment had been con life. (a) Co. Litt. 30. Dav. 50. (b) Rob. Gavelk. b. 2, chap. 1. (c) Co. Litt. 29, b. (d) Perk. sect. 473. (e) Sect. 5, pl. 3 and 4.(f) Co. Litt. 30. CURTESY. Issue. But as to himself, if it tional, and feoffment ment of his right. Also his feoff. ditional, and the husband entered for a breach, and then the wife had died, his right to curtesy would have been extinct (a); because, as it seems, the feoffment being the tortious act of the husband, were condi- although the law considers it, in regard to the feoffee, the condition as a conveyance of the actual interest of the wrongbroken, the doer, yet with respect to himself, the law makes it would be an to operate as an extinction of his right; and necesextinguish- sarily so, since by the re-entry he did not take back an estate in right of his wife, but the possession of the wrongful estate created by the discontinuance. But suppose the husband to aliene by feoffment ment before his wife's estate of inheritance before issue born, and to retake an estate in the lands to himself and wife, so that the latter is remitted to her ancient or former estate, and then they have issue; the husband will not be intitled to curtesy, although his right to it had no existence when the feoffment was made, mit his wife but which would have accrued afterwards upon the birth of the issue, if no feoffment had been made (b); for the husband, by his tortious discontinuance of his wife's estate, extinguished all his then present and future rights, in the face of which the law will not allow him to derive any benefit from his wife's remitter to her former or ancient inheritance (c). issue born will extinguish his right to curtesy, although he take back such an es tate as to re to her first estate. Nature of the estate. The next thing proposed to be considered wasIV. The nature of the estate of tenant by the curtesy, with the incidents, privileges, and powers belonging to, and his liability in respect of it. (a) Co. Litt. 30, b. (6) 2 Bro. Tenant per le Curtesy, 6. 7 Vin. Abr. 162, pl. 2. Hob. 338. (c) The reader will find this doctrine of Remitter considered in chapter II. sect. 3. Tenant inti 1. It was noticed in the beginning of this chap- CURTESY. ter, that the interest of tenant by the curtesy is an Nature of the estate to continue during his life (a). He, as other estate, &c. tenants for life, is intitled to emblements, and may An estate for dispose of them by his will; or, if he make no such life. disposition, they will belong to his executor or administrator (b). He is equally privileged with tled to emtenant in dower, in regard to the interference of a Court of Equity, for the removal of a satisfied term and to the of years, which would prejudice his estate in a Court removal of an of Law; and whether such term be outstanding or satisfied assigned to attend the inheritance of the estate, will make no difference (c). blements, outstanding term. of wife's But an estate by curtesy is considered in many Curtesy a respects as a continuation of the estate of the wife. continuation The consequence is, that her husband takes it after estate, her death, with all the incumbrances which would affect it in her possession if she were living. cumbrances. Accordingly, a woman tenant in tail acknow- And liable ledged a statute, then married, had issue, and died. to her inIt was adjudged, as Noy says, that the lands might be extended in the hands of tenant by the curtesy; and even of the issue in tail, during the life of the tenant by the curtesy, if he surrender his life-estate (d). But the interest of tenant by the curtesy being Tenant must merely for his life, as we have seen, he, as every the interest. keep down other tenant for life, will be obliged in equity, at the instance of the owner of the inheritance, to keep down the interest of the charges upon the estate (e). (a) Supra, p. 5. sect. 4. (b) 2 Black. Com. 122; and see chap. 9, (c) Snell v. Clay, 2 Vern. 324; and for further informa tion on this subject, see chap. 11, sect. 2. Note 17. (e) 1 Atk 606. (d) Dyer, 51, b VOL. I. D CURTESY. estate, &c. And is intitled to his Another consequence of the interest of tenant by the Nature of the curtesy being considered a continuation of his wife's estate is, that if there be coparceners of an advowson, and the wife is the eldest parcener, and they cannot agree to present; the eldest being intitled to wife's turn of the first turn, if she die before its arrival, her huspresentation band, in respect of the estate which he enjoys in her right by the curtesy, will be intitled to the presenta to a living, though she be dead. Liable to a writ of partition, and may issue it. Liable to waste. Privity between him and the heir. Action of waste. tion in the same manner as she would have been had she been then living (a). So also a writ of partition lies against tenant by the curtesy, which could not be the case unless his estate were considered a continuation of that of his wife (b). But since he is not strictly a parcener, he could not have that writ by the common law, for it lay only for coparceners; however, by the statute of the 32d of Henry the eighth (c), he or his alienee may now have the writ (d). The estate by curtesy is not dispunishable of waste; and such is the privity between tenant by the curtesy and the heir, that, according to the common law, if both of them had conveyed away their estates, no action of waste could have been supported against such tenant, except by the heir; but by the statute of Gloucester (e), remedy is given to the grantee of the reversion, against tenant by the curtesy, so long as that estate continues, and afterwards against his alienee. Yet, whilst the heir does not part with his reversion, tenant by the curtesy remains liable to an action of waste, at the (a) Co. Litt. 166, b. Cro. Eliz. 19. (c) Chap. 32. (d) Co. Litt. 175, 6. (b) Co. Litt. 175. (e) 6 Edw. 1 chap. 5. |