estate, became one of the pares curtis, did homage CURTESY. to the Lord, and was called tenant by the curtesy initiate; and this estate being once vested by the birth of issue, was not suffered to determine by the subsequent death or maturity of the infant (a).

This title of the husband is an estate for life in such lands and tenements of his wife, as she was seised of in fee-simple or fee-tail, upon having issue by her born alive that may by possibility inherit the estate (b) by descent from her.

Four circumstances are requisite to complete this title of the husband, viz. a legal marriage (c)-seisin by the wife of the estate-inheritable issue-and her death.

Who are and who are not capable of being tenants by the curtesy.

nization and

I. All such persons may be tenants by the curtesy who are legally married, and are permitted by the laws to hold and enjoy real estate. An alien, therefore, is not one of such persons, because he is not allowed by the policy of the law to enjoy and retain lands for his own benefit (d): but he may be natu- Aliens. ralized or made a denizen. The one is the act of the legislature; the other that of the King alone by Difference letters patent. The former removes all defects and between dedisabilities ab initio; the latter only removes them naturalizafrom the date of the instrument. If, then, an alien husband be made a denizen and afterwards have issue, as such issue may inherit, the husband will be intitled to curtesy; but if the issue were born before the denization, and the husband had none afterwards, he would have no title to curtesy, because no issue which he ever had could inherit his wife's estate; the father prior to his being made a denizen having

(a) 2 Black. Com. 126. "Dower," chapter 9, sect. 1.

(b) Litt. sect. 35—52.

(c) Seǝ

(d) Co. Litt. 2 b. 8. 1 Lev. 59.

tion.

CURTESY.
Of what

estates.

Idiots.

Property to which

curtesy attaches.

To what not.

no inheritable blood to transmit to his children. If, however, he were naturalized, since that Act had a retrospective operation, he would be intitled to curtesy, whether he had issue by his wife before or after the passing of the legislative provision.

It seems to have been the doctrine of the law in ancient times, that if the wife were an idiot, her husband would not be intitled to curtesy, so that if lands descended to a feme idiot, who had issue, and her husband entered, and then she was found an idiot by office, the King by prerogative would have been intitled to them discharged from curtesy (a). It seems, however, agreed at present, upon principles of sound sense and reason, that an idiot cannot marry, she being incapable of consenting to any contract; this doctrine, therefore, cannot now take place.

II. Of what estates and seisins.

1. Of what estates.

be

The property subject to curtesy are manors, lands and tenements, of which actual seisin may obtained by the wife; and of various hereditaments, such as rents, tithes (b), commons, advowsons (c), offices of inheritance, trusts, equities of redemption, &c. (d)..

But of the following particulars there can be no curtesy: viz. of a mere right, title, condition, personal inheritance, &c. (e).

If, therefore, the wife be grantee of a personal annuity to her and her heirs, and have issue, the

(a) Co. Litt. 30. 2 Black. Com. 127. (b) Co. Litt. 29. (c) Ibid. (d) Litt. sect. 35. Perk. sect. 457-463. Plowd. (e) Co. Litt. 29. Perk. sect. 457 and 463. 7 Vin.

379, b.
Abr. 160.

husband cannot claim it after her death, as tenant CURTESY.

by the curtesy.

Seisin in fact. The reason why curtesy was not applicable to such matters was probably its origin in feudal times, and its being incident and necessary to tenure.

2. Of what seisins.

The subject of seisin the reader will find fully entered into in the first chapter on Dower (a), to which he is referred for the particular cases which may not be noticed in this section.

1. As to seisins in fact.

In all cases where actual seisin by the wife can be acquired, as of lands and tenements, it must be obtained in order to found the husband's claim to curtesy (b). The reason is, to enable the heir to take the estate from her in that character, which is essential to the husband's title, for it is a rule of law, that the heir, claiming by descent, must derive his title from the person last actually seised of the inheritance. If, therefore, the wife was not so seised, he could not inherit it from her; so that one of the requisites of the husband's title to curtesy would be wanting, viz. issue that could inherit the estate by descent from the wife. The reader will find this subject fully and ably discussed and explained in the case of Doe v. Hutton, decided in the Court of Common Pleas, and reported in Bosanquet and Puller's Reports, vol. 3, page 643.

Actual seisin of the inheritance by the wife of her lands and tenements being required, for the reasons before stated, to intitle her husband after her death

(a) Chap. 9 of this work, sect. 2. pl. 4. 679-680.

(b) 6 Term Rep.

Entry upon scended to the wife necessary.

an estate de

4

CURTESY.

Seisin in fact.

Disseisin be

to curtesy, that estate will not arise unless there be an entry in her lifetime.

If, therefore, A be seised of lands in fee which descend upon his daughter B, who marries and has issue; but B dies before entry by herself or her husband, or other person for them; he shall not be tenant by the curtesy, because his wife had only a seisin in law (a). Suppose, also, that a woman was disseised of her fore and no estate before her marriage, and no entry was made re-entry during marriage, during the coverture, the husband would not be intitled to curtesy; for whilst the marriage lasted his wife had a right of inheritance only, and he cannot intitle himself to curtesy by an entry after her death (b).

no title to curtesy.

Contra if disseisin be after marriage. took place after the marriage, for the wife being seised during the coverture, and the husband's title being inchoate by the marriage and the birth of issue, and he having obtained a right of entry in respect of such title, may pursue it after his wife's death; but in the former case, his title depended upon his entry during the marriage, which right of entry was not in respect of any title to curtesy, but to him and his wife jointly, in right of his wife during the marriage, which entry it is obvious he could not make after the coverture had determined (c).

But the reverse would be the case if the disseisin

Reasons.

As to suspension of

&c.

So also the suspension of the freehold in seigniothe freehold, ries, rents, commons, and the like, during the marriage, will prevent the husband's title by the curtesy: but if the suspension be for years only, it will not have that effect, the possession of the termees being in law the possession of the husband and wife (d). Since to enable the issue to inherit, as the wife's

(a) Co. Litt. 29. (d) Co. Litt. 29 b.

(6) Perk. sect. 458.

(c) Ibid,

heir, her actual seisin is necessary, as I have before CURTESY. observed, it has been said, and correctly, that if the Seisin in fact. husband had gone towards the land, and had done every thing in his power to make an entry, it would not avail, unless he actually entered during the marriage (a).

upon

will.

wife's

copyholds;

It has been noticed, that curtesy only arises out of No curtesy the seisin of the wife of an estate in fee-simple or fee- seisin for life, tail, and of whom the husband may have inheritable or tenancy at issue. If, then, his wife be seised of a less estate than that of inheritance, his title to curtesy will not arise. When, therefore, she is but tenant for life, or Consequentat will, no curtesy attaches; and it is for the latter ly not of reason that copyhold estates are not by the common law subject to curtesy; the interest of the wife in them being considered as an estate at will only. But since custom is the basis of the titles to copyholds, except by special custhe husband will have a right to curtesy when the tom, custom authorises it; and in manors where such custom prevails, the husband will be so intitled although his wife happens to die before admittance (b). which is This special custom being an exception to the strictly. general law of copyholds, is construed strictly. If, then, the custom allowing the husband curtesy relate to women only who shall be possessed of copyhold Instance. lands at the period of marriage, it will not be extended to include such other copyhold lands as she may acquire during the coverture (c).'

The seisin of the wife must be of the entire inheritance at some period during the marriage.

Her seisin, therefore, of a reversion in fee upon an estate for life, will not intitle her husband to

(a) Doct. and Stud. 2 Dial. c. 25. Perk. sect. 470. (6) Gilb. Ten. 288. 4 Rep. 22. Hob. 181, 216. Cro. Eliz. 361. (c) 2 Leon. 208.

construed

Wife's seisin of a reversion on an

a ren estate for life insufficient.