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TITLE V.

CURTESY.

CHAP. II.

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

1. Estates in Fee Simple.
5. Estates Tail.

11. Estates in Coparcenary and
Common.

12. Trust Estates.

13. Money to be laid out in Land.
15. Equities of Redemption.
16. Incorporeal Hereditaments.
17. What Things are not liable to
Curtesy.

18. Estates not of Inheritance.
22. Estates in Joint-tenancy.
23. Reversions and Remainders.
24. Lands assigned for Dower.
25. Copyhold Estates.
26. Nature of this Estate.
31. Forfeitable for Alienation.
33. But not for Adultery.
34. This Tenant punishable for
Waste.

Estates in

T

SECTION 1.

Fee Simple. appears from Glanville, lib. 7. c. 18. that the

437 b.

Bro. Ab.
Estate, 25.

IT.

right to curtesy was originally confined to the maritagium of the wife; but was soon extended to all

the lands whereof the wife was seised, whether she acquired them by inheritance, or as a maritagium, or by donation; as is stated by Bracton. And Littleton's description of curtesy extends to all estates in fee simple.

2. If a woman, tenant in tail, after possibility-of issue extinct, takes a husband, has issue, and the fee simple descends upon her, the husband will be entitled to curtesy; because, by the descent of the fee, the estate tail after possibility was merged; and the wife became tenant in fee simple executed.

3. A man may be tenant by the curtesy of a 1 Inst. 30 d. capital messuage, though it be caput baroniæ or comi

tatus, as also of a castle, which serves for the public defence of the realm, and of a manor with all its rights and appurtenances.

4. Where by articles previous to marriage a woman Stedman v. Pulling, granted to her intended husband, during their joint 3 Atk. 423. lives, the interest of her money, and the rents of her estate, of which she was seisid in fee, to maintain the house, &c.; Lord Hardwicke held that this was not intended to abridge the husband's legal rights; therefore that he was entitled to be tenant by the curtesy of the estate whereof his wife was seised at the time of the marriage; as well as to an estate which came to her after.

5. Before the statute De Donis, conditional fees Estates Tail. were subject to curtesy. When that statute converted them into estates tail, husbands were allowed.

to be tenants by the curtesy of them also.

6. Where lands were given, before the statute De 8 Rep. 35 b.. Donis, to a man and a woman, and the heirs of their 2 Inst. 336. bodies to be begotten, the course of descent was in some degree changed by their having issue; for then the land became descendible to all the heirs of the donee's body, and also liable to the curtesy of a second husband. To prevent this, it was enacted by the statute De Donis, that where lands were given in this manner, a second husband should not be tenant by the curtesy.

7. In Littleton's description of curtesy, it is confined to women seised as heirs in special tail. There

can be no doubt however but that the husband of a woman donee in special tail would be also entitled to curtesy.

M 4

Paine's Case, 8 Rep. 34.

1 Inst. 30 a.

8. It was formerly doubted whether a man could be tenant by the curtesy of an estate tail, after failure. of issue capable of inheriting the estate; by which the estate tail was in fact determined, and the donor's right to the reversion accrued. But it has been resolved that, in a case of this kind, the husband should have his curtesy.

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9. A man, having issue two daughters, gave lands to the elder, and the heirs of her body; remainder to the younger, and the heirs of her body. The elder daughter married, and had issue born alive, that died; afterwards she herself died. The younger daughter entered upon the husband of the elder, who claimed to be tenant by the curtesy. It was objected that the husband should not in this case be tenant by the curtesy, because the estate of the wife was determined; and the estate of the husband, which was derived out of that of the wife, could not continue longer than the primitive estate endured; for, cessante statu primitivo, cessat derivativus. But it was answered and resolved, that at common law, if lands had been given to a woman and the heirs of her body, and she had taken a husband, and had issue, and the issue had died, and the wife had died without issue, whereby the inheritance of the land reverted to the donor; in that case the estate of the wife was determined, and yet the husband should be tenant by the curtesy; for that was tacitè implied in the gift: that the husband was therefore entitled in this case to hold the estate tail during his life, as tenant by the curtesy. The estate by the curtesy was not derived merely out of the estate of the wife, but was given to the husband by the privilege and benefit of the law: for as soon as the husband had issue, his title became

initiate, and could not afterwards be defeated by the death of the issue; which, being the act of God, ought not to turn to his prejudice.

6 Rep. 41 a.

10. Curtesy is an incident so inseparably annexed 1 Inst. 224 a. to an estate tail, that it cannot be restrained by any proviso or condition whatever.

11. A man may be tenant by the curtesy of an Estates in estate in fee or in tail, held in coparcenary or in and ComCoparcenary common with other persons; of which an account mon. will be given under those titles.

Tit. 19 & 20.

Estates.

12. Although curtesy is a right derived from Trust positive institution, not from any moral principle, yet it is much favoured in equity: for trust estates are liable to curtesy, and the courts of equity will assist a tenant of this kind in removing trust terms for years; of which an account will be given hereafter. 13. It has been stated to be a rule in equity, that money agreed or directed to be laid out in the purchase of land shall be considered as land to all intents and

purposes. Upon this principle it is held, that a man may be tenant by the curtesy of money agreed or directed to be laid out in the purchase of land. ;

Tit. 12. c. 2.
Money to be

laid out in

Land.

Tit. 1. § 6.

2 Vern. 536.

14. A person devised 300l. to her daughter Mary, Sweetaple v. Bindon, to be laid out by her executrix in the purchase of land, and settled to the only use of her said daughter and her children; if she died without issue, the lands to be equally divided between her brothers and sisters. The plaintiff married Mary the legatee, and had issue by her. She and her children being dead, and the money not laid out in land, the bill was, that the plaintiff might either have the money laid out in the purchase of land, and settled on him for life, as tenant by the curtesy; or have the interest of it during his

life.

4

Cunninglian
v. Moody,
1 Ves. 174.

Dodson
v. Hay,
3 Bro. R. 404.

S. P.
Equities of

The Court observed, that if this had been an immediate devise of land, the devisee would have been tenant in tail, consequently the husband would have been tenant by the curtesy. It was therefore decreed that the money should be consdered as land; and that the plaintiff should have the interest and produce thereof during his life, as tenant by the curtesy.

15. An equity of redemption of an estate in fee Redemption, simple is subject to curtesy; of which an account will be given in Title XV. Mortgage.

Incorporeal

Heredita

ments.

What Things

to Curtesy.

16. Some incorporeal hereditaments, such as advowsons, tithes, commons, and rents, are liable to curtesy; of which an account will be given under those respective titles.

17. Having stated the different kinds of property are not liable which are liable to curtesy, it will now be necessary to examine what things are not subject to this right.

Inheritance.

Estates not of 18. No estates in land are subject to curtesy but estates of inheritance; for an estate by the curtesy is a continuation of the inheritance, and therefore there can be no tenant by the curtesy, unless the children take the inheritance. And it is absolutely necessary, that the moment the husband takes as tenant by the curtesy, the inheritance should descend upon the children.

Boothby v.

Vernon,

19. Lands were devised to Ann Boothby and her 9 Mod. 147. assigns for her life; if she married, and had issue male of her body living at the time of her death, then to such issue male and his heirs male for ever. Ann Boothby married, had issue, and died in the lifetime of her husband.

Roberts v.
Dixwell,
Tit. 38.

It was held that the inheritance never having been vested in the wife during her life, her husband could not be tenant by the curtesy.

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