20. Lands were devised to A. and her heirs; if she Sumner v. died before her husband, he to have 207. a year; the Patridge, 2 Atk. 47. remainder to go to the children. The wife died before her husband. The Court said it was a rule, in the case of a tenancy by the curtesy, that the estate should come out of the inheritance, and not out of the freehold; therefore the husband was not entitled to curtesy.

7 Term R.

21. A woman tenant in tail, previous to her mar- Doe. v. riage, conveyed her estate, by lease and release, to Rivers, trustees, to the use of her husband for life, remainder 276. to herself for life, remainder to the first and other sons of the marriage. The woman died in the lifetime of her husband; and it was held that the husband did not 'take any estate under the settlement, because it was not competent to the wife to pass the estate by such a conveyance, to the prejudice of her issue, after her death, and that he did not take an estate by the curtesy ; because, the instant the marriage took effect, Tit. 2. c. 2. the estate was vested in the husband during the joint § 18. lives of himself and his wife; consequently there never was one moment during the coverture when the wife was seised of an estate tail in possession; which was necessary in order to make the husband tenant by the curtesy.

22. Estates in fee or in tail, which are held in joint- Estates tenancy, are not subject to curtesy; of which the in Jointreason will be given in that title.

tenancy. Tit. 18.

Remainders.

1

23. Lord Coke says, a man shall not be tenant by Reversions or the curtesy of a reversion or remainder expectant Inst. 29 a. upon an estate of freehold, unless the particular estate be determined during the coverture. But a man is entitled to curtesy of a reversion expectant on an estate for years, because the wife was seised of ante, c. 1. the freehold.

§ 12.

24. A man cannot be tenant by the curtesy of lands, which are assigned to a woman for her dower; of which the reason will be given in the next title.

25. Copyhold estates are not liable to curtesy by the common law. There are however many manors in which the husband of a female copyholder is, by particular custom, entitled to his wife's estate, if he survives her; of which an account will be given in Title X. Copyhold. But a man may be tenant by the curtesy of the rents and services due for copyholds, where his wife was seised of the manor.

26. An estate by the curtesy is no more than a bare estate for life, nor has this tenant any more privileges than a mere tenant for life. By the custom of Normandy it was determinable upon the second marriage of the tenant, which, we have seen, is still the case in gavel-kind lands.

27. An estate by the curtesy is considered in many respects as a continuation of the wife's estate; therefore the husband is entitled to all those rights and privileges which his wife would have had if she were alive, and which were annexed to her estate.

28. No entry is necessary to complete this estate; for, on the death of the wife, the law adjudges the freehold to be in the husband immediately, as tenant by the curtesy.

29. Where an estate, of which a man is tenant by the curtesy, is charged with the payment of a sum of money, the person entitled to the inheritance can oblige the tenant by the curtesy to keep down the interest, as well as any other tenant for life.

30. The tenant by the curtesy shall be attendant on the lord paramount for the services due in respect to the lands that he holds by this title.

for Aliena

31. If a tenant by the curtesy aliens in fee, or in Forfeitable tail, or for the life of the grantee, it is a forfeiture of tion. his estate; and the person in reversion may, by the 2 Inst. 309. statute of Westminster 2. c. 24. have a writ of entry

in consimili casu.

32. Tenants by the curtesy are restrained from Tit. 32. c. 24. barring the heirs of their wives by warranty without

assets.

33. A husband does not forfeit his right to an But not for Adultery. estate by the curtesy by leaving his wife, and living 3 P. Wms. in adultery with another woman.

276.

301.353.

34. It appears to have been doubtful whether a This Tenant punishable tenant by the curtesy was punishable at common law for Waste. for waste; therefore it was enacted by the statute of 2 Inst. 145. Gloucester, 6 Edw. I. c. 5. that a writ of waste might be brought against him; and that he should incur the same penalties for committing waste, as any other tenant for life.

35. There is such a privity of estate between the tenant by the curtesy and the heir, that at common law, although both had, as it were by consent, granted away their estates, yet no action of waste lay against any other than the tenant by the curtesy; nor against him, by any other than the heir at law. By the statute of Gloucester, c. 5. a remedy is provided for the grantee of the reversion, against a tenant by the curtesy, so long as he continues his estate; or against his assignee. But while the heir keeps his reversion, the tenant by the curtesy is liable to his action of waste, notwithstanding any assignment; the statute having provided no remedy for this case.

2 Inst. 301. 8vo, p. 230.

2 Bac. Ab.

36. It appears somewhat doubtful whether tenant 1 Inst. 57 a. by the curtesy is within the statute 6 Anne, c. 31. n. 1. respecting accidental fire.

Tit. 3. c. 2.

$83.

TITLE VI.

DOWER.

CHAP. I.

Origin and different Kinds of Dower.

CHAP. II.

Circumstances required to give a Title to Dower, and what Persons are capable of it.

CHAP. III.

Of what Things Dower may be; and Nature of this Estate.

CHAP. IV.

Assignment of Dower, and Modes of recovering it.

CHAP. V.

What will operate as a Bar or Satisfaction to Dower.

THE third estate for life derived from the law is that which a widow acquires in a certain por

tion of her husband's real property, after his death,

for her support and maintenance; which is called dower.

2. The idea of dower is derived from the Germans, Origin of Dower. among whom it was a rule, that a virgin should have no marriage portion, but that her husband should allot a part of his property for her maintenance, in case she survived him. Thus Tacitus says-Dotem non uxor marito, sed uxori maritus offert.

3. When the Germans established themselves in the southern parts of Europe, and reduced their customs into writing, they fixed the portion of the husband's estate which he might allot to his wife for her dower. The Longobardic code directed that it should consist of a fourth part, the Gothic of a tenth; and in process of time regular forms were invented V.2.414.937.

for the purpose of constituting dower.

4. The Saxons, like all the other German nations, were well acquainted with the custom of dower; for it appears from the laws of King Edmund, that a widow was entitled to a moiety of her husband's property for her life; but which she forfeited by a second marriage. And in the Appendix to Somner's Gavel-kind there is a Saxon charter, entitled Chirographum pervetustum de nuptiis contrahendis, et dote constituenda; in which particular lands, together with thirty oxen, twenty cows, ten horses, and ten bondmen, are appointed for the wife's dower.

Du Cange,
Baluz. Form.

voce Dos.

Marculphi
Form. c. 15.

Lindbebrog,

LL. Sax.

Tit. 7.

5. It is not known whether the Conqueror made any alteration in the Anglo-Saxon custom respecting dower: so that it probably continued to consist of a moiety of the husband's lands, upon condition that the widow remained chaste and unmarried. By the charter of King Henry I. this condition of chastity Blackst. and widowhood was only required where there was Tracts, 286.

issue.