curtesy

lord:

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death of the wife to the possession of the husband, Tenant by the as there is, in case of dower, between the death of the husband and the possession of the widow, no mesne seisin can here take place. Beside, holds of the the tenant by the curtesy holds immediately of the lord, and is tenant to him (n); whereas the and widow of dowager holds of the heir (o), and is attendant on such heir for the third of the services (p) [1].

(n) 2 Inst. 301; Fitz. N. B. 258, A. See 2 Comm. 126, ch. 8; Paine's case, 8 Co. 36 a.

(0) Fitz. N. B. 8, F, G; 358, B; 265, A; Co. Litt. 31 b, 241 a, and note (1); 2 Bl. Comm. 135, 6, ch. 8; Paine's case, 8 Rep. 36 a; Bro. Abr. tit. Tenures, 84; Kitch. 209 b.

The widow shall hold as the heir holds, and not as the baron held. Keilway, 124 a, pl. 80, and 129 a, pl. 98.

F;

If a woman be endowed of a manor, she shall pay all services to the heir as he pays over. Plowd. Qu. 90. (p) See note (o), and Perk. s. 424; 7 Co. 9 a; 8 Co. 36 a; 9 Co. 135 a & b; tit. Attendante.

Fitz. N. B. 8,
Termes de la Ley,

the heir.

If there be no heir, and the lord or donor enter for such default, the widow shall hold by the third part of the services of such lord or donor: but if the lord or donor determine the estate of the husband by his own act, as by purchase, she shall not render any services to him. See Bro. Abr. tit. Tenure, pl. 33, 82, and Extinguishment, 31; Fitz. Abr. tit. Dower, pl. 130; Perkins, s. 429; Kitch. 209 b: and see The Customes of Westsheen, &c. art. 4, in 2 Collect. Jurid. 382.

[1] A widow entitled to dower has not, before assignment of her dower, such an interest as to gain a settlement in the parish in which the lands lie. Rex v. Northweald Basset, 4 Dowl. & Ryl. 276; 2 B. & C. 724.

In order to entitle the husband to curtesy, the issue must be such as may

[84]

Continuance of seisin.

But, though the seisin of the heir may be defeated, as we have observed, yet, where seisin of an inheritance is once alleged, it shall always be intended to continue till the contrary be shewn (q).

(9) Case of Cockman v. Farrer, Sir Thomas Jones, 182; and see Plowd. 193 a, 431 a.

Seisin is also favoured in equity. See Gr. and Rudim. of Law and Equity, 66, rule 96.

by possibility inherit to the estate. Sumner v. Partridge, 2 Atk. 47; Barker v. Barker, 2 Sim. 249. See also Buckworth v. Thirkell, 3 Bos. & Pull. 652, note: the difference between which case and that of Barker v. Barker, is well explained by the present Vice Chancellor in his judgment in the latter case.

SECT. IV.

Of what hereditaments a Possessio Fratris* may be.

A POSSESSIO FRATRIS may, generally speaking, be of all HEREDITAMENTS, corporeal or incorporeal; as lands, rents, &c. (a). So of GAVELKIND-LANDS (b); of lands in BOROUGH ENGLISH (c); and of COPYHOLDS (d). Of AN USE (e): (i. e. of

*It is frequently said in these pages that a possessio fratris may be of an use, trust, &c. of which, strictly speaking, there can be no seisin or possession; and consequently it seems a contradiction: yet it is so said, not only in compliance with the usual mode of expression, but for want of a better term, and to prevent a prolixity. All that is meaned is, that the property is so fixed in a mesne person as to make him the stock of descent.

(a) See Co. Litt. 14 b; Fitz. N. B. 36, E; and ante, s. 1 & 2.

(b) See Robins. on Gavelk. b. 1, ch. 6, p. 100.

(c) 1 Com. Dig. 615, tit. Borough English.

(d) Gilb. Ten. 161; 4 Co. 21, 22; Lex Cust. ch. 17, p. 153, 157; Kitch. 81 b; Reyner v. Poell, 2 Brownl. 43; Coke's Copyholder, s. 50, Tracts, 116; and see ante, s. 2, p. 51, 2.

(e) See Fitz. Abr. tit. Subpoena, pl. 3; 1 Co. 88 a, and 121 b; 4 Co. 22; Bro. Abr. tit. Descent, 36; Dyer, 10, 11,

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[86]

uses not executed by the statute; for uses executed are legal estates (f)-). Of A TRUST (g). Of AN EQUITY OF REDEMPTION, (as seemingly by the better opinion (h)-). And although a POSSESSIO FRATRIS CANNOT properly be of A remainder or

REVERSION EXPECTANT UPON AN ESTATE OF FREE

HOLD (i), yet, by the exertion of certain acts of ownership, (as by granting them over for term of life,) a POSSESSIO FRATRIS of them may be made (k) [1]. There can be NO POSSESSIO FRATRIS of an ESTATE TAIL (1); nor of HONORARY DIGNI

pl. 40; 274, pl. 43; Plowd. 58; Co. Litt. 14 b, 19 b; 2 P. Wms. 736. But see 2 Anders. 146, 7, contra. Note-see Sanders on Uses and Trusts, 104, 5, [vol. 1, pp. 64, 270, 4th edition.]

(f) Co. Litt. 14 b, note (5); and see 2 Atk. 583, and 1 Ibid. 593.

(g) See 1 Co. 121 b; 2 P. Wms. 713; Hardres, 488, 2 Com. Dig. tit. Chancery, (4 W 1); Penville v. Luscomb, Mosely, 72. [S. C. 2 Jac. & W. 201. See ante, p. 60, n. [1]].

(h) See Casborne v. Scarf et al., 1 Atkins, 604, 607 [S. C. 2 Jac. & W. 194; West, 221]; and Co. Litt. 205 a, note (1); and Penville v. Luscombe, Mosely, 72, and ante, 60, note (a), [S. C. 2 Jac. & W. 201].

(i) Gilb. Ten. 15. See Co. Litt. 14 a, and note (6), 11 b.; Kitch. Courts, 109 b, &c. ; 3 Co. 42 a & b; Reeve v. Malster, Cro. Car. 411, 12; Buckmere's case, 8 Co. 88 b; and post, ch. 3, s. 1.

(k) 8 Rep. 35 b; Co. Litt. 15 a, 191 b, and post, ch. 3, S. 1. (7) Fitz. Abr. tit. Descent, 8; Plowd. 57; 3 Co. 40 a; Co. Litt. 14 b, 15 b; Noy's Max. 23, ch. 4; Bro. Abr. tit. Descent, 56; Kitch. on Courts, 109 b. See Calth. Copyh. 88.

[1] See as to the alteration effected by the new act, ante, p. 65, n. [1].

TIES (m); but of A FEUDAL TITLE OF HONOR there MAY; for the title follows the land (n). So of an office of DIGNITY (0). But of the descent of THE CROWN AND ITS POSSESSIONS there can be no POSSESSIO FRATRIS (p). Neither can there be a POSSESSIO FRATRIS of A RIGHT ONLY (q); nor of AN INCIDENT OR APPENDANCY, distinctly from its principal (r) [1].

(m) 3 Co. 42 a; Co. Litt. 15 b; and see Visc. Purbeck's case, Shower's Parl. Cases, 9, 10.

(n) Co. Litt. 15 b, note (3); ante, s. 2, p. 61.

(0) Co. Litt. 15 b, note (3).

(p) Plowd. 245; Co. Litt. 15 b; 2 Bl. Comm. 233, ch. 14. (q) See ante, s. 3, p. 64.

(r) See ante, s. 2, p. 62.

[1] In Long v. Myles, Fox and Smith's Irish Reports, p. 1, the court of King's Bench in Ireland held, that there might be possessio fratris of an estate pur auter vie, though Littleton, sec. 8, mentions only lands in feesimple, and the "&c." which, according to Lord Coke, comprehends so much, is omitted. But it is evident, from the foregoing section, that possessio fratris may be of many other things than of lands in fee-simple. Mr. Preston's opinion is in favour of a possessio fratris in such a case, 3 Preston's Abstracts, 4. We have seen before, p. 42, n. [1], that under the act for the amendment of the Law of Inheritance, possessio fratris is of no avail to make the mesne person the stock of descent, for in every case descent shall be traced from the purchaser.