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II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens where one is tenant in special tail; and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct: in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue: (w) in this case the man has an estate-tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as absolutely neces

sary to give an adequate idea of his estate. For if it had called him [125] barely tenant in fee-tail special, that would not have distinguished

him from others: and besides, he has no longer an estate of inheritance or fee, (x) for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail, which he once had, but also states that this possibility is now extinguished and gone.

This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation,

w Litt. § 82.

x Roll. Rep. 34. 11 Rep. 80.

of such lands, tenements, or hereditaments, if such tenant for life die on the day on which the same was made payable, the whole; or if before such day, then a proportion of such rent, according to the time such a tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionable part thereof respectively."

Where the mischief recited in this act does not apply, and the lease does not determine on the death of the tenant for life, the case is not affected by it; and therefore if a tenant for life, with a leasing power, demises the premises pursuant to such power, and dies before the rent becomes due, as the rent, and the means of recovering it, will go to the remainderman or reversioner, (see 3 Maule & S. 382.) and will not be lost, the case is not within the act, and the executors of the tenant for life are not entitled to any proportion of the accruing rent. 1 P. Wms. 177. 2 Madd. 268. But if the lease or demise of the tenant for life is not within the power, and determines on his death, this is a case of appointment under the statute. 1 Swanst. 337. and the learned note of the reporter, 357. It seems that the executors of tenants in tail, who had made leases void, as against the remainderman, and dies without issue, is within the equity of the statute. Ambl. 198. 2 Bro. C. C. 639. 8 Ves. 308. At all events, if the remainderman has received the whole rent, it seems settled he shall account in equity to the executor of the tenant in tail, id. ibid. ; and which doctrine seems to apply to the successor of a parson who has received a composition for tithe jointly accruing in the lifetime of the deceased incumbent. 8 Ves. J. 308. 10 East, 334. It is laid down in 10 Co. 128. and Christian's edition, that this actis confined to the death of the landlord, who holds for his own life, and that therefore it seems if tenant pur auter vie leases, and the cestuy que vie dies, the lessee is not compellable to pay any rent from the last day of payment before the death of cestuy que vie. In STaunt. 331. Mansfield, C. J. expresses his doubts, see 2 Saund. 288. D.; and it should seem that the case is within the act. See other cases as to apportionment. 1 P. Wms. 392. 3 Atk. 260. 583. 2 Ves. 672. Amb. 198 279. 2 Bro. 659. 3 Bro. 99. 2 P. Wms. 502. There is no apportionment of an annuity, unless expressly provided for, 1 Swanst. 349. in notes; but if there has been judgment on an annuity bond standing as a security for future payments of an annuity, the court will give plaintiff leave to take out execution for a proportion of a quarter, up to grantee's death, 2 Bla. R. 1017. 11 Ves. J. 361.; and in equity the maintenance of an infant is always apportioned. Id. ibid. 1 Swanst 350. There is no apportionment of dividends in the case of tenant for life; but there is of interest of mortgages, as that is perpetually accruing. 2 P. Wms. 76. 1 Swanst. 349. in notes. Chitty. (7) Bac. Ab. tit. Estate Tail, after possibility, &c. 97. et index. Fearne Con. Rem. 63,4.

Com. Dig. Estates, C. 1 Cruise Dig

conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them. (y) A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old. (z)

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This estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as not to be punishable for waste, &c.: (a) or, he is tenant in tail, with many of the restrictions of a tenant for life; as to forfeit his estate, if he alienes it in fee-simple: (b) whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner: who is not concerned in interest, till all possibility of issue be extinct. But, in general, [126] 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.

III. Tenant by the curtesy of England, is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail; and has by her issue, born 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. (c)

This estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it is said in the Mirrour (d) to have been introduced by king Henry the First; but it appears also to have been the established law of Scotland, wherein it was called curialitas, (e) so that probably our word curtesy was understood to signify rather an attendance upon the lord's court or curtis (that is, being his vasal or tenant), than to denote any peculiar favour belonging to this island. 10 And therefore it is laid down (f) that by having issue, the husband shall be entitled to do homage to the lord, for the wife's lands, alone: whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of king Henry III. (g) It also appears (h) to have obtained in Normandy; and was likewise used among the ancient

y Co. Litt. 28.

a Co Litt. 27.
e Litt. 55. 52.
Litt. 90. Co. Litt. 30. 67.

z Litt. § 34. Co. Litt. 28.

b Ibid. 28.

d c. 1. §3.
e Crag. 1. 2. c. 19. § 4.
g Pat. 11 H. III. m. 30. in 2 Bac. Abr. 659.
b Grand Coustum. c. 119.

(8) This tenant being dispunishable for waste, may not only commit ordinary waste, but also convert to his own use the property wasted. A court of equity, however, will restrain him from committing malicious waste, which, if committed, it would seem (as in the case of ornamental trees), the property wasted will go to the first person living who has an estate of inheritance. This appears to be the only way to reconcile the authorities on the subject, some of which maintain that the property belongs to the tenant, others say it must go to the reversioner. See Har. Co. Litt. 27. b. & 218. b. n. 2. 2 P. Wms. 241. & Williams v. Williams, 15 Ves. 430.

(9) See in general, 2 Saunders, 45. n. 5. 46. n. q. 382. a. b. Bac. Ab. tit. Curtesy of England. Com. Dig. Estates, D. 1. Prest. on Conv. 69. 1 Cru. Dig. 104. and index, tit. Curtesy. Fearne Con. Rem. 56, 6. 341, 2. 562. n. g.

(10) I should rather think with Mr. Wooddeson, that this estate took its name from its peculiarity to England: and that it was afterwards introduced into Scotland and Ireland. 2 Wood. 18. Tenant by the curtesy of England, perhaps originally signified nothing more than tenants by the courts of England; as in Latin he is called tenens per legem Anglia. See stat. pro tenentibus per legem Anglia. App. to Ruff. 29.-Mr. Christian's note.

Almains or Germans. (1) And yet it is not generally apprehended to have been a consequence of feodal tenure, (k) though I think some substantial feodal reasons may be given for its introduction. For if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guar

dian of the child, and as such is in reason entitled to the profits of 127] the lands in order to maintain it; for which 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. () 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, 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.

:

There are four requisites necessary to make a tenancy by the curtesy ; marriage, seisin of the wife, issue, and death of the wife. (m) 1. The marriage must be canonical and legal. 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. 12 And therefore a man shall not be tenant by the curtesy of a remainder or reverson. 13 But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife as in case of an advowson, 14 where the church has not become void in the life-time of the wife: which a man may hold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem.(n) If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she herself has any title: and since she could never be rightfully seised of the lands, and the husband's title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy. (o) 15 3. The issue must be born alive. 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. (p) The issue also must be born

during the life of the mother; for if the mother dies in labour, and [128] 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 k Wright, 294.

I F. N. B. 143.

i Lindenbrog. LL. Alman. t. 92.
m Co. Litt. 30. n Ibid. 29.
p Dyer, 25. 1 Rep. 34.

o Co. Litt. 36. Plowd. 263.

(11) 2 Saund. 45. n. n. (5). Courts of equity, however, allow curtesy of trusts and of other interests, which, although mere rights in law, are deemed estates in equity. 1 Atk. 603. 1 P. W. 108. Lord Redesdale on 2 Sch. and Lef. 388. suggests this reason for the distinction between dower and this claim, viz. that parties had been acting on this supposition, that the creation of trust estates would bar dower, and that it was necessary for the security of purchasers, mortga gees, and other persons taking the legal estate, to depart in cases of dower from the general principle of courts of equity, which is, in acting upon trusts to follow the law, but it was not necessary in cases of tenancy by the curtesy, because no such practice had prevailed. Chitty.

(12) Entry is not always necessary to an actual seisin or seisin in deed; for, if the land be in lease for years, curtesy may be without entry or even receipt of rent, the possession of the lessee being the possession of the husband and wife. Co. Litt. 29. a. n. 3. 3 Atk. 469. But if the lands were not let, and the wife died before entry, there could be no curtesy. Co. Litt. 29. (13) See 2 Saund. 382. a. b.

(14) But if an advowson be appendant to a manor, and the wife die before entry into the manor, the husband shall not be tenant by the curtesy of the advowson. Hal. MSS. Archbold

415) See this doubted in Harg. Co. Litt. 30. b. n. 2.

descended to the child, while he was yet in his mother's womb; and the estate being once so vested, shall not afterwards be taken from him. (q) In gavelkind lands, a husband may be tenant by the curtesy, without having any issue. (r) 16 But in general there must be issue born: and such issue as is also capable of inheriting the mother's estate. (s) Therefore if a woman be tenant in tail male, and hath 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. (t) And this seems to be the principal reason why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised: 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 standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised; and therefore as the husband hath never begotten any issue that can be heir to those lands, he shall not be tenant of them by the curtesy. (u) And hence we may observe, with how much nicety and consideration the old rules of law were framed; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture; for, whether it were 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. (w) The husband by the birth of the child becomes (as was before observed tenant by the curtesy initiate, (x) 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. (y) 7

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IV. Tenant in dower 18 is where the husband of a woman is seis

ed of an estate of inheritance, and dies; in this case, the wife shall [129] have the third 19 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. (2)

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 any thing in ge

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(16) But a tenant by curtesy of gavelkind lands has only a moiety of the wife's estate, which he loses by a second marriage. Robin. Gavelk. b. 2. c. 1.

(17) If the child which the husband has by his wife be capable, and have a mere possibility of inheriting, the husband shall be tenant by the curtesy. Thus, if a woman seised in fee of lands marry and have a son, after which the husband dies, and she marries again and has a child by the second husband, here the husband shall be tenant by the curtesy, although there is but a mere possibility that the child which the wife had by her second husband should ever inherit the estate, the child by her first husband being alive. Prest. Est. 516.

(18) As to dower in general, see the excellent notes in 2 Saunder's Rep. 43 to 45. and id. index, Dower; Bac. Ab. and Com. Dig. tit. Dower; 1 Cru. Dig. 127. and index, tit. Dower; 1 Prest. on Conv. 69. index, tit. Dower; Fearne Con. Rem. 347.

(19) But of gavelkind lands, a woman is endowed of a moiety while she remains chaste and unmarried. Co. Litt. 33. b. Rob. Gavelk. 159. And of borough English lands, the widow is entitled for her dower to the whole of her husband's lands held by that tenure. But of copyhold lands a woman is endowed only of such lands whereof her husband was seised at the time of his death. Cowp. 481. And her title to dower or free-bench is governed by the custom; according to its authority she may take a moiety, or three parts, or the whole, or even less than a third, but it must be found precisely as it is pleaded. Boraston v. Hay, Cro. Eliz. 15.

neral more different, than the regulations of landed property according to the English and Roman laws. Dower out of the lands seems also to have been unknown in the early part of our Saxon constitution; for in the laws of king Edmond, (a) the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands; with a proviso that she remained chaste and unmarried; (b) as is usual also in copyhold dowers, or free bench. 20 Yet some (c) have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feodal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens, tertia, (d) and dotalitium) by the emperor Frederick the Second; (e) who was contemporary with our king Henry III. It is possible therefore, that it might be with us the relic of a Danish custom : since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our [130] Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals. (f) However this be, the reason which our law gives for adopting it, is a very plain and sensible one; for the sustenance of the wife, and the nurture and education of the younger children. (g)

In treating of this estate, let us, first, consider who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how dower may be barred or prevented.

1. Who may be endowed. She must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos. (h) But a divorce a mensa et thoro only, doth not destroy the dower; (i) no, not even for adultery itself by the common law. (k) Yet now by the statute West. 2. (1) if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her. 21 It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy; (m) but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place." By the ancient law, the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde, (n) that if the love of a

a Wilk. 75. b Somner. Gavelk. 51. Co. Litt. 33. Bro. Dower, 70.
d Crag. l. 2. t. 22. § 9.
e Ibid.
g Bract. l. 2. c. 39. Co. Litt. 30.

c Wright, 192.
f Mod. Un. Hist. xxxii, 91.
b Bract. 1. 2. c. 39. § 4.
i Co. Litt. 32.

k Yet, among the ancient Goths, an adulteress was punished by the loss of her dotalitii et trientis ex bonis mobilibus viri. (Stiernh, l. 3. c. 2.)

113 Edw. I. c. 34.

m Co. Litt. 31.

n P. C. b. 3. c. 3.

(20) The distinction between free-bench and dower is, that free-bench is a widow's estate in such lands as her husband dies seised of; whereas, dower is the estate of the widow in all lands of which the husband was seised during the coverture. Godwin v. Winsmore, 2 Atk. 525.; see also Carth. 275, 2 Ves. 633. 638. Cowp 481. and Gilb. Ten. ed. Watkins, n. 164. The custom of free-bench prevails in the manors of East and West Enborne, and Chadleworth, in the county of Berks; at Torr, in Devonshire; Kilmersdon, in Somersetshire; and other places in the west of England.

(21) And in a case where John de Camoys had assigned his wife, by deed, to sir William Paynel, knight, which lord Coke calls concessio mirabilis et inaudita,it was decided in parliament, a few years after the statute was enacted, notwithstanding the purgation of the adultery in the spiritual court, that the wife was not entitled to dower. 2 Inst. 435. This is an indictable offence, being a great public misdemeanor. See Book IV. p. 65. n. 12. Christian

(22) Ante, 1 Book 438. n."

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