CURTESY. When de acts. would estop his title to curtesy, as of a crime excepted by the statute passed in the reign of the feated by the late King, and before referred to, and she obtains wife's sole a charter of pardon, it is presumed that such pardon would not place the husband in a condition to claim curtesy, at her death, in the estate of which she was seised at the time of the attainder; because the pardon did not remove the corruption of blood that such attainder occasioned previously to the grant of the pardon, which could only be done by act of parliament, so that the attainder remaining in force as to the lands of which the wife was seised before the pardon, interrupts her husband's title to curtesy, which is to be derived from her (a). But of lands of inheritance acquired by the wife after the pardon, the husband will be intitled to curtesy upon the birth of heritable issue and the death of his wife (b). So also will he be intitled if her attainder be reversed, or she die before judgment (c). These subjects being more fully detailed under title "Dower" (d), the reader is desired to refer to it. (a) See 1 Leon. 3, pl. 7; and Gate v. Wiseman, Dyer 140 b. (b) Co. Litt. 392. Perk. sect. 387. (c) 4 Black. Com. 392. Co. Litt. 390 b. (d) Chap. 11, sect. 3, pl. 2 and 3. 51 CHAPTER II. THE HUSBAND'S POWER OVER HIS WIFE'S REAL ESTATES. In this chapter I propose to consider I. The interests of the husband and wife in real II. Discontinuances of the wife's estate by her hus- IV. The husband's power to forfeit his wife's copy- I. Of gifts or devises to husband and wife. and wife do It has been long since settled, that by gifts or de- Husband vises of freehold or copyhold lands to the husband not take in and wife, they do not take interests in joint-tenancy, moieties. as other persons, but that they take such benefits by entireties. Thus, a devise to A and B, who are strangers to, and have no connexion with each other, creates a joint tenancy; and a conveyance by one of them will sever the joint interest, and pass a moiety to the alone cannot alienee but when a devise is made to husband and lawfully convey his wife's wife, since they take by entireties, and not in moieties, interest, So that he GIFTS OR the husband alone cannot, by his own conveyance, GRANTS BE TWEEN HUS- devest the wife's estate or interest, so that if she survive him she will be intitled to the whole (a). BAND AND WIFE. Instances The principle of these and the like decisions is founded upon that unity of persons in man and wife, which the common law created upon the due solemnization of the marriage. By that law, all gifts, grants, and devises to husband and wife, and their heirs, operate in such a manner as to give to each the whole, and not in moieties; and the husband alone cannot dispose of any part of the estate so given. The law is the same whether the property nor forfeit it. be in possession, remainder, or reversion (b): and such an interest will not be forfeited by the treason of the husband, but the wife will take the whole (c). The same rule, as to husband and wife taking in entirety, prevails when a feoffment with warranty is made to a man and woman, who afterwards marry, and happen to be impleaded and vouch and recover them jointly in value; because at the time of recovery they were husband and wife, and unable to take in moieties. So also if livery of seisin was not made secundum formam chartæ until after the marriage; or in the case of a grant to them of a reversion, if attornment was not made before the solemnization of the marriage (d). But they may take in severalty by express Instance of limitation, as in the instance of a limitation to A for their taking in severalty life, then to the husband for life or in tail, with remainder to his wife for life or for years. where they take in en tirety under instruments made to before the marriage. in succes sion. (a) Co. Litt. 187. Freestone v. Parratt, 5 Term Rep. 652. (b) 2 Lev. 39. Co. Litt. 187 b. Litt. 187 b. (c) Ibid. 187 a. (d) Co. GRANTS BE- law husband could not At common his wife. grant &c. to Alteration made by the put upon the uses, and the statute of reason. 2. Upon the same principle of union of husband Gifts or and wife so as to be but one person, the husband could not by any common law conveyance give or grant any estate to the wife, either in possession, reversion, or remainder; and the same disability prevailed in regard to the wife (a): but an exception to this rule was introduced by the statute of uses (b). It was accordingly holden that if the husband made a feoffment or conveyance by lease and release to A, to the use of his wife in fee, such a conveyance construction would be good, and the wife seised of the inheritance; and upon this reasoning, that the legal estate passed from the husband to the feoffee or releasee; out of whose seisin the statute operating upon the use limited to the wife, transferred to it the legal estate, which for a moment was in the feoffee or releasee; and thus, by a subtlety evading the rule of the common law, that the wife cannot take by conveyance from her husband. That, since the statute, the legal estate must pass from the husband to another person stand seised in order to serve the limitation of the use to the to her use. wife, appears from this, that the husband cannot covenant with her to stand seised to her use. At Instances present the wife may take an estate from her husband by limitation of an use as above; or by devise, because that does not take effect until after the marriage is determined (c). For the same reason, a her husband. donation mortis causâ by the husband to her will be good (d). And it seems that by the custom of particular places, as of York, the wife may take by That reason does not husband to covenant authorise her with her to where the wife may take an estate or in terest from (a) Litt. sect. 168. Co. Litt. 187 b. (b) 27 Hen. 8. c. 10. (e) Co. Litt. 112 a. and b. (d) Lawson v. Lawson, 1 P. Will. 441. DISCONTI NUANCE OF ESTATE. Discontinuance of immediate conveyance from her husband (a); or they may surrender copyholds to the use of each other (b), except the husband be Lord of the manor, for in that case the grant would be immediate to the wife, which, as before is mentioned, is not admissible (c). II. The common law imparted to the husband, wife's estate. as a necessary incident to the seisin he acquired of the wife's freehold estate by the marriage, a power by alienation of converting her interest in it to a mere right; for the property of the wife during the coverture being vested in her and her husband indivisibly, he acquired the right of possession, which being conveyed away by him, the wife was not allowed, from the unity of their estate and interest before described, to consider the act of her husband a disseisin of herself, which might be defeated by mere entry; but she was permitted to contest the right only: hence we have the import of the word "Discontinuance," viz. the alienation of the possession to the prejudice of the person having the right of property, defeasible by action only. Remedy for issue, &c. The tortious acts pass the rights of feoffor and conusor. Discontinuance was always the consequence when a tenant in tail, or a husband seised in the right of his wife of her estate of inheritance aliened by fine or feoffment; the law presuming, that the alienors had sufficient interests to give full effect to those conveyances until the contrary was shown in a court of justice; for that reason it did not allow the estates of the conusee or feoffee to be defeated by entry. But the effects of the fine (a) Fitz. Prescription, 61. 1 Bro, Abr. Custom, fo. 201 b. pl. 56. (6) Bunting v. Lepingwell, 4 Rep. p. 29. (c) Symes v. Pennant, 2 Wils. 255. |