CURTESY. When defeated by wife's eviction from, or the determination of her estate. where the wife had a life estate only by express limitation, with the reversion in fee, subject to a contingent remainder in tail to her issue male, if she left any; the reversion being executed in her sub modo only, (i.e. to separate from the particular estate, as if they had never been united, upon the contingency happening); if the wife leave a son at her death (as she did in Boothby v. Vernon), she was to be considered as having been seised of an estate for life only during the marriage, which estate having determined by express limitation at her death, her husband could not make a title to curtesy (a). And with respect to the case in Leonard (b), A covenanted to stand seised to the use of B, her eldest daughter in tail, upon condition that B should pay to her sister C, within a year after A's death, or within a year after C should attain the age of eighteen, the sum of £300; and if B failed to make such payment as aforesaid, then to the use of C in tail. B, after A's death, married, had issue, and died without leaving issue before the period arrived for payment of the £300. Question, whether her husband should have curtesy? And the Court decided in his favour, upon the ground, that as the estate tail in B determined by her death without issue, her husband, as settled in such cases, was intitled to curtesy. Such alone was the point expressly determined. And in Flavell v. Ventrice (c), a case of dower, no decision appears to have been made, the opinions of the four Judges having been equally divided. Consider, (a) See ante, p. 10, and chap. 9, sect. 2, pl. 4. (b) Sammes v. Paynes, 1 Leon. 167. (c) Roll. Abr. 676. Goldsb. 81. ; wife's eviction from, or mination of the deter her estate. then, this question upon reason and principle. It CURTESY. is settled that in every case where a man takes a When dewife seised of such an estate in lands, as that the feated by issue which she has by him might by possibility inherit them as heir to her, he shall, after her death, hold the lands for his life as tenant by the curtesy if, therefore, at any time during the marriage, the wife be seised of the inheritance, and have heritable issue, it seems to be a necessary consequence, that whether her estate determine by the death of such issue, or by any event, subsequent to such seisin, attached to such estate where it is not avoided ab initio, the inchoate right to curtesy shall not be defeated by either of those events taking place. Besides, the husband's title to curtesy is not merely derived out of, or dependant upon his wife's estate, but it is created by law, it is a privilege and benefit of law annexed to the gift, and the law, as I conceive, says, that as the estate remains (a), and the husband's right to curtesy once attached to it, such right shall be a charge upon the estate, into whose possession soever it may afterwards come during the marriage. In this respect curtesy and dower are governed by the same principle. The very case in question was put by Anderson, J. in the case of Sammes v. Paynes, before referred to, viz. that if a feoffment were made to the use of J. S. and his heirs, until J. D. had done such a thing, and then to the use of J. D. and his heirs, and the thing was done, and then J. S. died, the wife of J. S. should be endowed. This appears to have been admitted in Doe v. Hutton (b); (a) See pp. 16 and 17. (6) 3 Bosanq. and Pull. Rep. C. P. 652. CURTESY. When defeated by wife's eviction from, or the determination of her estate. Curtesy defeated by the wife's endowment of her mother. and the above observations seem to be supported by the authority reported in a note to the case last referred to:-Devise to trustees and their heirs, to receive the rents and profits of an estate, and apply them for the maintenance of Mary Barnes, until she arrived at the age of twenty-one, or until she married, and upon her arrival, at that age, or marrying, to the use of Mary Barnes in fee; but in case she died before the age of twenty-one, and without leaving issue, remainder over. Mary married, and had a child, which died, and then she died under the age of twenty-one. Question, whether Mary's husband was intitled to be tenant by the curtesy? And Lord Mansfield and the other Judges decided in favour of the husband's title: his Lordship observing that tenancy by the curtesy existed before the statute De Donis; that estates at that time were of two sorts, conditional or absolute, and that curtesy applied to both; that at common law, the only modification of estates was by condition; that all the cases which had been cited went upon the distinction of their being conditions, and not limitations, and that in the present case the wife, during her life, continued seised of a fee-simple, to which her issue might by possibility inherit (a). An instance of the defeazance of the wife's seisin by a prior title, and consequently of the husband's right to curtesy, occurs in her endowment of her mother; because by such endowment, in affirmance of the mother's title to dower commencing before the wife's marriage, the wife's seisin (a) Buckworth v. Thirkell, K. B. Trin. Term, 25 Geo. 3. the deter became in fact that of a reversion upon an estate for CURTESY. life, which we have seen is not such a seisin as will When deintitle the husband to curtesy. But if the mother feated by wife's evicdie before her daughter, (the estate for life determin- tion from, or ing by that event), then if the husband re-entermination of during the life of his wife, his title to curtesy will her estate. revive and be established (a). A further instance of the title to curtesy determin- wife survive ing with the seisin of the wife, may happen when such &c. seisin is defeated by a stranger recovering the property in a court of justice against her and her husband. But if such recovery be afterwards reversed, the husband will be intitled to curtesy. In illustration of this, Perkins puts the following case : Contra if the the mother, husband and wife for her versed. estate be re If the husband and wife be seised of lands in fee Or if a judg as in the right of his wife, which are recovered from ment against them upon false testimony, and after the issuing of execution they have issue, and the wife dies, the husband shall have attaint; and when he has recovered the estate, and avoided the recovery by attaint, he shall hold the land as tenant by the curtesy; and that the law was the same of a recovery against them by erroneous process (b). The reason is obvious-for the only obstacles to the husband's title by curtesy, were the judgments; and when they were reversed, his wife's seisin, which had been suspended, and out of which had arisen the right to curtesy, was revived. 2. Since, as it has been observed, the recovery (a) Co. Litt. 31 a.; and see for more particulars on this subject "Dower," chap. 9, sect. 2. (b) Perk. sect. 475. See 3 Black. Com. 403, for the proceedings in attaint. Curtesy defeated by the fine or recovery of husband and wife. CURTESY. When de feated by the joint acts of husband and wife. Contra if the fine or recovery be reversed; which, if at all, must be reversed in toto. Forfeiture of curtesy by in an action against husband and wife, of her estate will defeat the husband of curtesy, in consequence of the eviction of her seisin and possession; so it will be, if he and his wife join in a fine or a common recovery; for the natural effects of such acts are to pass or extinguish all rights and titles whatsoever. But if they concur in a fine of her estate, she being then under the age of twentyone, and it is afterwards reversed on that account, her husband will be entitled to curtesy, and upon the same principle, as we have seen, that he is so intitled upon the reversal of a judgment against him and his wife. It seems to have been once a question, whether such a fine should be reversed quoad the wife only, and not against her husband, who was of full age when it was levied. But since by the fine the husband parts with nothing separately from his wife, and were it to be reversed only against her, it would remain as the husband's sole fine, and operate as a discontinuance of her estate, contrary to the intention of the parties, it was adjudged in the case of Charnock v. Worsley (a), that the fine should be reversed in toto. 3. It has been observed that the husband may, during the marriage, by his own feoffment, extinguish his title to curtesy (b), and he may consequently do so by his fine. But if after his wife's death he aliene the estate in fee or in tail, or for the life of the lessee, any of band's con- those acts will be a forfeiture of his tenancy by the the hus veyances at common law. curtesy, and the person intitled in reversion may |