4 Rep. 63 a. inheritance shall have them; for inasmuch as he has but a particular estate for life in the land, he cannot have an absolute interest in the trees: but he shall not be punished in waste, because his original estate was not within the statute of Gloucester. This is denied by Lord Coke, who is reported to have said, that at common law this tenant had a fee, and consequently full power to fell and dispose of the trees; and notwithstanding the statute De Donis had made the estate to be only for life, yet the privilege and liberty was not taken away.

1 Roll. R. 184.

Williams v.
Williams,

11. In a late case Lord Eldon held that a tenant 15 Ves. 419. in tail after possibility of issue extinct, being dispunishable for waste by law, has equally with tenant for life, without impeachment of waste by settlement, an interest and property in the timber.

But is restrained from malicious Waste.

Abraham v. Bubb,

2 Freem. 53.

2 Show. 68.

Anon,

2 Freem.278.

12. The Court of Chancery, by analogy to the rule adopted in the case of tenant for life, without impeachment of waste, will restrain persons seised of estates tail, after possibility of issue extinct, from pulling down houses, cutting down trees planted for shelter or ornament; or any other kind of malicious

waste.

13. A woman being tenant in tail after possibility of issue extinct, and having married again, her second husband felled some trees in a grove that grew near, and was an ornament to, the mansion-house. Having an intent to fell the rest, the person in remainder preferred his bill to restrain her from felling those trees. The court discovered a strong inclination to grant the injunction; but the case was referred.

14. A woman, tenant in tail after possibility of issue extinct, was restrained from committing waste, in pulling down houses, or felling trees, which stood in defence of the house; and also fruit-trees in the garden. But for some turrets of trees which stood

a land's length or two from the house, the court would grant no injunction, because she had by law power to commit waste; and yet she was restrained in the particulars aforesaid, because that seemed malicious.

15. On a motion for an injunction to stay a joint- Cook v. Whaley, ress, tenant in tail after possibility of issue extinct, 1 Ab. Eq. from committing waste; it was urged that she being 400. a jointress within the statute 11 Hen. VII. ought, in equity, to be restrained from cutting timber, that being part of the inheritance, which by the statute she was restrained from alienating. The court granted an injunction against wilful waste in the site of the house, and pulling down houses.

over.

Case,

3 Leon, 241.

16. The privileges which this tenant enjoys arise His Privileges from the privity of estate, and because the inheritance not grantable was once in him; therefore if he grants over his estate to another, his grantee will be bare tenant for life. 17. Thus where a tenant of this kind granted over Apreece's his estate, the grantee was compelled to attorn as bare tenant for life; and so to be named in a quid juris clamat. For although it were true that a tenant of this kind was not compellable to attorn, yet that was a privilege annexed to his person, not to the estate; but by the assignment the privity was altered, and the privilege gone.

TITLE V.

CURTESY.

CHAP. I.

Origin of Estates by the Curtesy, and Circumstances required to their Existence.

CHAP. II.

Of what Things a Man may be Tenant by the Curtesy and Nature of this Estate.

CHAP. I.

Origin of Estates by the Curtesy, and Circumstances required to their Existence.

Origin of
Curtesy.

TH

SECTION 1.

HE second estate for life derived from the common law is that which a husband acquires in his wife's lands, by having issue by her; which is called an estate by the curtesy of England: for before issue had, the husband has only an estate during the joint lives of himself and his wife.

§ 35.

2. Littleton says this estate is so called, because it is peculiar to England. This is a mistake; for the custom that a husband who had issue should retain the lands of his deceased wife, during his life, prevailed among all the northern nations, and is to be found in the laws of Normandy. It is said in Horne's c. 1. § 3: Mirror to have been established in England by King

Henry I. This is extremely probable; as there is a

full account of it in the treatise that bears the name Lib. 7. c. 18. of Glanville, which was written in the reign of Bract. 437 b. Henry II.

of.
$35.

3. An estate by the curtesy is thus described by Description Littleton: Where a man taketh a wife seised in fee simple, or in fee tail general, or seised as heir in special tail, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life, by the law of England."

703.

4. Sir Joseph Jekyll has observed that the hus- 2 P. Wms. band's tenancy by the curtesy has no moral foundation, and is therefore properly called a tenancy by the curtesy of England-that is, an estate by the favour of the law of England.

ces necessary

5. Littleton's description of curtesy points out four Circumstaneircumstances as absolutely necessary to the exist- to its Existence of this estate; namely, 1. Marriage; 2. Seisin ence. of the wife; 3. Issue; 4. Death of the wife.

6. With respect to the marriage, it must be between 1. Marriage. persons capable of contracting together, and duly

celebrated.

Law, 458.

It should however be observed, that although, where 2 Burn Eccl. a marriage is void, the husband does not acquire a title to curtesy; yet if it be only voidable, and is not annulled during the life of the wife, the husband will be tenant by the curtesy: for no marriage can be

2. Seisin.

1 Inst. 29 a.

Vide Doct. &

Stud. Dial. 2. c. 15.

avoided by the ecclesiastical courts, after the death of either of the parties.

7. With respect to the mode of proving the fact of marriage, it will be stated in the next title.

8. As to the seisin of the wife, or of the husband in right of his wife, it is a circumstance absolutely necessary. With respect to corporeal hereditaments, there must be a seisin in deed. Thus Lord Coke says, if a man dies seised of lands in fee simple, or fee tail general, and the lands descend to his daughter who marries, has issue, and dies before entry, the husband shall not be tenant by the curtesy. Yet in this case the wife had a seisin in law. But if she or her husband had entered during her life, he would have been tenant by the curtesy.

9. The time when the seisin commences, whether 1 Inst. 30 a. before or after issue had, is immaterial. For if a man marries a woman seised in fee, is disseised, and then has issue, and the wife dies, he shall enter and hold by the curtesy: so if he has issue, which dies before the descent of the lands on the wife.

1 Inst. 29 b. n. 3.

10. If a woman, tenant in tail general, makes a feoffment in fee, and takes back an estate in fee, and marries, has issue, and dies; the issue may in a formedon recover the land against his father; because he is to recover by force of the estate tail, as heir to his mother, and is not inheritable to his father.

Mr. Hargrave has observed upon this passage, that the husband could not have curtesy in respect of the fee, because that was defeated by the son's recovery in the formedon; nor in respect of the tail, because the wife's feoffment, before the marriage, had discontinued it; consequently there could be no seisin of it during the marriage.