We may also look upon this tenant in another point of view, as being a tenant in tail, subject to many of the restrictions of a tenant for life; thus he formerly forfeited his estate, if he aliened it in fee-simple (r): whereas such alienation by tenant in tail, though voidable by the issue, was no forfeiture of the estate to the reversioner: who cannot be concerned in interest, till all possibility of issue be extinct. But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life; which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature. If this tenant convey his estate to another in the hands of the alienee, it is but an ordinary estate for the life of the alienor (s). We need scarcely add, the estate never could under the ancient law, and cannot under the modern law, be converted into a fee-simple.

Tenant by the curtesy.

Tenant by the curtesy of England, is where a man has been married to a woman who at any time during the coverture has been solely seised in possession of an estate of inheritance, that is, of lands and tenements (t) in *fee-simple or fee-tail; and has by her issue, born [* 246] alive, which was capable of inheriting her estate. In this case he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England (u). (239)

This estate, according to Littleton, has its denomination, because it is used. within the realm of England only, the word perhaps denoting that it was recognised by the courts of England (x); and it is said in the Mirrour (y) to have been introduced by king Henry I.; it appears also to have been the established law of Scotland, where it probably was introduced from England (z), and was there called curialitas (a). It is likewise used in Ireland, by virtue of an ordinance of king Henry III. (b.) But it appears (c) to have obtained in Normandy; and was likewise used among the ancient Almains or Germans (d). And yet it is not generally apprehended to have been a consequence of feudal tenure (e), though some substantial feudal reasons may be given for its introduction. For, if a woman seised of lands hath issue by her husband, and

(r) Ib. 28. See post, c. 18.

(8) 3 Leon. 341.

(t) See a reference to some old instances of curtesy of titles and offices of honour, Co. Litt. 29 a. Mr. Hargrave says, "I cannot learn that there have been any claims of dignities by curtesy since Lord Coke's time; and from the want of modern instances of such claims, and from some late creations, by which women have been made peeresses in order that the families of their husbands might have titles, and yet the husbands themselves continue commoners, it seems as if the prevailing notion was against curtesy in titles of honour. However, I have not yet discovered whether this great question has ever formally received the judgment of the House of Lords." See ante, p. 215.

There is no curtesy of a copyhold, unless

(239) In this country an estate as tenant by the curtesy is firmly established, unless some statute prescribes a different rule. To give all the statutes relating to this subject is not important in this connection: and, as a general rule, nothing but the principles of the common law will be here noticed.

dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the *lands in order to maintain it; for which [* 247] reason the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee, during the life of such tenant (ƒ). As soon, therefore, as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord (g), and was called tenant by the curtesy initiate; and this estate being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant.

Four requisites to curtesy.

1. Legal marriage.

2. Seisin of wife.

There are four requisites necessary to make a tenancy by the curtesy; marriage, sole seisin of the wife, issue, and death of the wife (h). 1. The marriage must be canonical and legal. (240) 2. The seisin of the wife must be an actual seisin or possession of the lands; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed, or, what is for this purpose equivalent, an actual receipt of the rents and profits (i). A husband therefore cannot be tenant by the curtesy of a remainder or reversion (k); but the title of the husband is not displaced by the fact, that the estate of the wife is an equitable one, that is, where the wife is a beneficiary under a trust, for courts of equity deeming such equitable interest to be governed by all the same rules and subject to the same incidents as legal estates give the husband the same benefit out of them as he would take if they were legal (7). And a limitation of the equitable interest to the wife's separate use will not affect the husband's rights (m).

[* 248]

*Again, the tenancy by curtesy is not defeated by the fact that the estate of the wife is by its limitation defeasible, that is to say, terminates through the happening of some event, such as her dying without leaving issue surviving her (n). Of course, if the lands have been aliened during the wife's lifetime, the husband cannot take as tenant by the curtesy, for they could not have been aliened without his consent, which would bind him (0). But of some incorporeal heraditaments a man may be tenant by the curtesy though there have been no actual seisin of the wife; as, in case of an advowson

(f) F. N. B. 143.

(g) 8 Rep. 36 a. (h) Co. Litt. 30.

(i) Co. Litt. 29 a; 8 Rep. 96 a; 3 Atk. 469. (k) 2 Saund. 382.

(1) Casburne v. Scarfe, 1 Atk. 603; s. c. 2 Jac. & W. 194; Watts v. Ball, 1 P. W. 108; Sweetapple v. Bindon, 2 Vern. 535; Cunningham v. Moody, 1 Ves. S. 174.

(m) Morgan v. Morgan, 5 Mad. 408; but quare whether in such a case the wife could

not alien the property either by deed or will, and thus defeat the right of her husband. See Taylor v. Meads, 3 L. J. Ch. 204.

(n) Buckworth v. Thirkell, 3 B. & P. 652 n; s. c. 10 J. B. Moore, 235 n; where, however, the event which causes the defeasance is the birth of the issue, there is an exception to the rule, Barker v. Barker, 2 Sim. 249; 1 Jarm. Wills, 833.

(0) Unless the lands were settled to her sep arate use in fee. See ante, p. 247, n.

(240) No one can contract a valid marriage unless capable of giving an intelligent consent; and, therefore, the marriage of an idiot, a lunatic, or of any other person who has not the use of his or her understanding, is void. The test of capacity is such as is applied by the courts as to the fitness of a party to engage in the ordinary transactions of life, and, if found incapable as to such contracts, then there is the same incapacity to enter into a mar riage contract. Cole v. Cole, 5 Sneed, 57; Ward v. Dulaney, 23 Miss. 410; Atkinson v. Medford, 46 Me. 510; McElroy's Case, 6 W. & S. 451; Crump v. Morgan, 3 Ired. Eq. 91; Foster v. Means, 1 Speer's Eq. 569. If the marriage is utterly void there can be no tenancy by the curtesy.

in gross, where the church has not become void in the lifetime of the wife: which a man may hold by the curtesy, because it is impossible ever to have 3. Issue inherita- actual seisin of it, and impotentia excusat legem (p). 3. The ble born alive. issue must be born alive. (241) Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of its being born alive; but it is not the only evidence (q). The issue must also be born during the life of the mother; for if the mother dies in labour, and the Cæsarean operation is performed, the husband in this case shall not be tenant by the curtesy: because, at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child, while he was yet in his mother's womb (r): (242) and the estate being once so vested, * shall not afterwards be taken from him (s). In [* 249] gavelkind lands, a husband may be tenant by the curtesy without having any issue (t); but the custom there is that he only has half the lands and loses these by a second marriage (u). In general there must be issue born: and such issue as is also capable of inheriting the mother's estate (x). Therefore, if a woman be tenant in tail male, and have only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male (y). And this suggests the principal reason, why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised, (243) because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife: but no one, by the old rule of law (z), could be heir to the ancestor of any land, whereof the ancestor was not actually seised; and therefore, as

(p) Co. Litt. 29.

(q) Dyer, 25; 8 Rep. 34. Brock v. Kellack, 3 Giff. 58, and on appeal, 30 L. J. Ch. 498.

(r) For some purposes the law considers a child whilst in the mother's womb as being actually born, but this is only when the child obtains a benefit through the theory, Blasson v. Blasson, 2 De G. J. & S. 665. In the case mentioned in the text, it might be to the material prejudice of the child to look upon it as born.

(241) See Marsellis v. Thalhimer, 2 Paige, 35; Brock v. Kelloch, 3 Giff. 58; 7 Jur. N. S. 436; 2 W. R. 939; 4 L. T. N. S. 280; affirmed, 7 Jur. N. S. 789; 30 L. J. Ch. 498; 8 W. R. 939. Any clear evidence of life, such as pulsation, is sufficient. Ib.

(242) An unborn child, after conception, if it is subsequently born alive, and so far advanced toward maturity as to be capable of living, is considered as in esse from the time of its conception, where it is for the benefit of the child that it should be so considered. Hone v. Van Schaick, 3 Barb. Ch. 488.

(243) Where the wife has the legal estate, a constructive seizin is sufficient; as where the lands are vacant, or they are held under a lease by a tenant for years. Davis v. Mason, 1 Pct. 506; Jackson v. Johnson, 5 Cow. 74; Day v. Cochran, 24 Miss. 261; Stephens v. Hume, 25 Mo. 349; Chew v. Commissioners, etc., 5 Rawle, 160; Pierce v. Wanet, 10 Ired. 446; Wells v Thompson, 13 Ala. 793; Lowry v. Steele, 4 Ohio, 170; McCorry v. King, 3 Humph. 267; Powell v. Gossom, 18 B. Monr. 179.

Where the wife's seizin is merely that of a reversionary interest, after the determination of a prior freehold estate, which does not terminate during her life-time, her husband will not take as tenant by the curtesy. Furguson v. Tweedy, 56 Barb. 168; Tayloe v. Gould, 10 id. 388; Malone v. McLaurin, 40 Miss. 163; Redus v. Heyden, 43 id. 614. There cannot be a tenant by the curtesy in a remainder or a reversion. Prater v. Hoover, 1 Cold. (Tenn.) 544. VOL. I.—72

the husband had never begotten any issue that could be heir to those lands, he could not be tenant of them by the curtesy (a), and this rule remains, although the law out of which it arose has been abrogated. It is not necessary, however, that the issue begotten by the husband should be heir apparent of the land, it is sufficient that there should be a possibility of its inheriting. Thus if a woman be solely seised of lands in fee-simple and have a son by a former marriage, yet her husband, if he have issue by her, shall be tenant by the curtesy, for possibly the child of the second marriage might have inherited the land (b). The same will happen if the wife be convicted of felony after the birth of the issue (c). The time when the issue *is born is immaterial, provided [* 250] it happens during the coverture; for, whether it were born before or after the wife's seisin of the lands, whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy (d). The husband by the birth of the child becomes (as was before observed) tenant by the curtesy initiate (e), and may do many acts to charge the lands, but his estate is not consummate till the death of the wife: which is the fourth and last requisite to make a complete tenant by the curtesy (ƒ). (244).

Tenant by the curtesy initiate.

4th, Death

of wife.

anciently (g) where the *husband of a

(c) Co. Litt. 40 a. Barker v. Barker, 2 Sim. 249.

(d) Co. Litt. 29.
(e) Ib. 30.
(ƒ) Ib.

(g) Besides the kind of dower described in the text, there were also other kinds of dower which are of little interest to any but the antiquary, having long fallen into disuse, and been abolished by the legislature, a short account of them is therefore all that is here necessary.

Littleton, ss. 48, 49, mentions a dower de la plus belle, where a man held lands, part of which was held by tenure of chivalry, and part by common socage, in which case the burden of the widow's dower seems to have been thrown by the land during the nonage of the heir, entirely upon the socage lands if of sufficient value. This dower fell with the other incidents of military tenure. It gained its name from the widow, as guardian

in socage, endowing herself of the fairest parts of the socage lands.

Another dower was that ad ostium ecclesiæ (Litt. 39), which was where a tenant in feesimple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (Sir Edward Coke, in his translation of Littleton, adds) troth plighted between them, endowed his wife with the whole, or such quantity as he pleased of his lands; at the same time specifying and ascertaining the same; on which the wife, after her husband's death, entered without further ceremony. A third ancient dower was that ex assensu patris (s. 40); which was only a species of dower ad ostium ecclesia, made when the husband's father is alive, and the son, by his consent expressly given, endowed his wife with parcel of his father's lands. In either of these cases, they must (to prevent frauds) have been made in facie ecclesiæ et ad ostium ecclesisiæ; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuere conjugia. (Bracton, 1.2

(244) The interest of the husband as tenant by the curtesy initiate is such an estate as may be sold on an execution issued against him. Litchfield v. Cudworth, 15 Pick. 23; Lan caster Co. Bank v. Stauffer, 10 Penn. St. 398; Watson v. Watson, 13 Conn. 83; Wickes v. Clarke, 8 Paige, 161, 172: Perkins v. Cottrell, 15 Barb. 446, 448; Canby's Lessee v. Porter, 12 Ohio, 79; Mattocks v. Stearns, 9 Vt. 326; Schneider v. Staihr, 20 Mo. 269; Williams v. Morgan, 1 Litt. 167; Brown v. Gale, 5 N. H. 416; Babb v. Perley, 1 Me. (1 Greenl.) 6; Nicholls v. O'Neill, 2 Stockt. 88; Montgomery v. Tate, 12 Ind. 615; Cheek v. Waldrum, 25 Ala. 152. He has, at common law, the absolute control of the wife's lands during the joint lives of the husband and wife, and he may convey or mortgage it for that period. Miller v. Shackleford, 3 Dana, 289; Barber v. Harris, 15 Wend. 615; Junction Railroad Co. v. Harris, 9 Ind184. Upon a divorce from the bonds of matrimony for the adultery of the husband, his interest in the wife's land, as well as his power over it, ceases. Vincent v. Parker, 7 Paige, 65, 66; Stearns v. Stearns, 10 Vt. 540; Mattocks v. Stearns, 9 id. 326; Burt v. Hurlburt, id 292; Oldham v. Henderson, 5 Dana, 255.

Estate in dower.

woman was solely (h) seised of an estate of inheritance, and died (i); in this case, with the exceptions presently noticed, the wife had the third part of all the lands and tenements whereof he was seised at any time during the coverture, to hold to herself for the term of her natural life. Where the land was gavelkind, the widow was entitled to a moiety of the lands, but only so long as she remained chaste and unmarried (); and of lands held by the tenure of borough English, she took the whole for her life. But over copyhold lands, which depend for all their incidents upon the customs of the manor of which they form part, the widow had no claim unless there was a special custom to that effect. Where such a custom has existed the widow's claim is usually called free-bench, and is regulated wholly by the customs. Sometimes she may take a third, sometimes half, and sometimes the whole of the lands for her life. But usually only those lands of which her husband was seised at the time of his death, and not, as in the case of dower, under the old law, of all lands of which at any time during the coverture he had been seized (1).

The law of dower having been recently much changed by the [* 252 ] legislature (m), it is necessary to distinguish the case of widows who were married on or before the 1st of January, 1834, whose rights were unaffected by the statute, from that of those who were married after that date, who come under the operation of the new law. The statute extends to gavelkind lands (n), and it is presumed to those held in borough English, but not to copyhold lands (0); we will therefore examine the origin and rules of the ancient law, which though rapidly losing its practical importance, cannot yet be treated as obsolete, and afterwards show what modifications the legislature has introduced.

Its origin.

Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos: which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance; nor indeed is there anything in general more different, than the regulation of landed property according to the English and Roman laws. Dower out of lands seems also to have been unknown in the early part of our Saxon constitution; for, in the laws of king Edmund (p), the wife is directed to be supported wholly out of the personal estate. Afterwards, as we have seen, in gavelkind tenure, the

c. 39, s. 4.) These sorts of dower were abolished by 3 & 4 Will. 4, c. 105, s. 13, having, however, previously long fallen into disuse. See as to these species of dower, C. B. Gilbert's treatise.

(h) There was and is no dower of land held by the husband jointly with another, Litt. 8. 37.

(i) The banishment of the husband by abjuration, or by act of Parliament, being a civil death, was held to entitle the wife to her dower immediately; but if a man became civilly dead by profession, it gave her no avail, without whose consent he could not have entered into religion, and therefore his wife, after such civil death, was not dowable until his natural death. (Co. Litt. 132 b.)

(k) Co. Litt. 33 b; Rob. Gavelk. 159; Bro. Dower, 70.

(1) Godwin v. Winsmore, 2 Atk. 525; Hinton v. Hinton, 2 Ves. Sen. 631; Salisbury v. Hurd, Cowp. 481. See also Doe v. Sanders, 3 Dougl. 363.

The manor of Cheltenham is an exception; there free-bench is allowed out of all lands, of which the husband has been seised during the coverture. See an act of 1 Car. 1, and Doe d. Riddell v. Grinnell, 1 G. & D. 181; Riddell v. Jenner, 10 Bing. 29. As to the widow's interest in the manor of Taunton Deane, see Locke v. Southwood, 1 M. & C. 411; Norcott v. Gordon, 14 Sim. 258.

(m) 3 & 4 Will. 4, c. 105.

(n) Farley v. Bonham, 2 J. & H. 177. (0) Poudrell v. Jones, 2 Sm. & G. 407; Smith v. Adams, 5 De G. M. & G. 712. (p) Wilk. 75.