Curtesy

The estate to which, by common law, a man is entitled, on the death of his wife, in the lands or t Miements of which she was seised in possession in fee simple or in tail during her coverture, provided they have had lawful issue born alive which might have been capable of inheriting the estate. It is a freehold estate for the term of his natural life. 1 Washb. Real Prop. 127. In the common law, the word is used in the land of itself it denotes the estate. See "Estates." Some considerable question has been made as to the derivation both of the custom and its name. It seems pretty clear, however, that the term is derived from curtis, a court, and that the custom, in England at least, is of English origin, though a similar custom existed in Normandy, and still exists in Scotland. 1 Washb. Real Prop. 128, note; Wright, Ten. 192; Co. Litt. 30a; 2 Bl. Comm. 126; Ersk. Inst. 380; Grand Cout. de Normandie, c. 119.

The estate to which by common law a man is entitled, on the death of his wife, in tbe lands or tenements of which she was seised in possession in fee simple or in tail during their coverture, provided they have had lawful issue born alive which might have been capable of inheriting the estate. Chal. R. P. 314. An estate for life which a husband takes at the death of his wife, having had issue by her born alive during coverture, in all lands of which she was seised in fact of an inheritable estate during coverture. Tbe right of the husband to enjoy during bis life land of which bis wife is at any time during coverture seised in fee simple (absolute or defeasible) or in fee tail, provided there was issue, born alive, of tbe marriage. Demb. Land Tit. § 109. It is a freehold estate for the term of his natural life. 1 Washb. R. P. 127. In the common law the word is used in the phrases tenant by curtesy, or estate by curtesy, but seldom alone; while in Scotland of itself it denotes the estate. The phrase "tenant by the law of England" was also used, and is said to have been of earlier origin; 2 Poll. & M. Hist. E. L. 412. Some question has been made as to the derivation both of the custom and its name. It is said that the term is derived from Curtis, a court, and that the custom, in England at least, is of English origin, though a similar custom existed in Normandy, and still exists in Scotland. 1 Washb. R. P. 128, n.; Wright, Ten. 192; Co. Litt. 30 a; 2 Bla. Com. 126; Ersk. Inst. 380; Grand Cout. de Normandie, c. 119. But this derivation "is considered more ingenious than satisfactory," and it is suggested that it is possible to explain the phrase by "some royal concession," as "being reasonable enough." 2 Poll. & M. Hist. E. L. the death of his wife in lands which he had voluntarily settled upon her, if he did not expressly or by implication relinquish such rights in the settlement; Depue v. Miller, G5 W. \ a. 120, 64 S. B. 740, 23 L. R. A. (N. B.) 7751 In re Kaufmann, 142 Fed. 898; Meacham v. Bunting, 156 111. 586, 41 N. E. 175, 28 L. R. A. CIS, 47 Am. St. Rep. 239; contra, Batliff v. Ratliff, 162 Va. 887, 47 S. B. 1007. He has curtesy in the equity of redemption of the wife's lands; Jackson v. Printing Co., 8G Ark. 591, 112 S. W. 161, 20 L. EL A. (N. S.) 454. That, an estate was purchased by funds from the wife's separate estate and conveyed to the husband and wife jointly Will not deprive him of his curtesy in the property; Donovan v. Griffith, 215 Mo. 149, 114 S. W. 621, 20 L. R. A. (N. S.) 825, 128 Am. St. Rep. 458, 15 Ann. (as. 724. A surviving husband is entitled to curtesy out of a determinable fee owned by his wife with issue born alive notwithstanding the contingency upon which the fee is to terminate exists at the time of her death; Carter v. Couch, 157 Ala. 470, 47 South. 1006, 20 L. R. A. (X. S.) S58; Hatfield v. Sneden, 54 N. Y. 280; Webb v. First Baptist Church, 90 Ky. 117. 13 S. W. 3G2; Mc Masters v. Negley, 152 Pa 303, 25 Atl. G41. In Pennsylvania, by act of April 8, 1833, issue of the marriage is no longer necessary, so that the husband gains a freehold by the marriage itself; Lancaster County Bank v. Stauffer, 10 Pa. 399: but the law appli< when the estate is devisable, not to an estate tail or defeasible fee; Mc Masters v. Negley, 152 Pa. 303, 25 Atl. 641. That the wife's title to real estate is not acquired until after the death of the only child of the marriage will not deprive the husband of curtesy in the property; Donovan v. Griffith, 21T, Mo. 149, 114 S. W. G21, 20 L. R. A. (N. S.) 825, 128 Am. St Rep. 458, 15 Ann. Cas. 724. Ohio, Illinois. Kentucky, and Maine reduce the husband's life estate to one-third, calling it "dower," and dispense with birth of issue alive, while dower remains unchanged. In South Carolina and Georgia, curtesy has gone out of use. the husband having under the law greater benefits. Demb. Land Tit. § 109. Louisiana, Texas, California, Nevada, Washington, and Idaho, and Arizona and New Mexico have the "community" system and no curtesy; id. § 111. And in Indiana, Iowa, Minnesota, the Dakotas, Kansas, Colorado, Wyoming, and Mississippi, dower is applied by a forced lienship of the widow and there is no curtesy; id. § 108. See Doweu.

* 1. Where a man marries a woman seized of an estate of.an inheritance (that is, of land and tenements in fee-simple or fee-tail), and has by her issue, born alive, capable of inheriting the estate, on her death he holds the land for life as tenant by" the curtesy of England.* An estate by the curtesy is the interest to which the husband is entitled upon the death of the wife, in the lands or tenements of which she was seized in possession, in feesimple or in tail, during their coverture, provided they had lawful issue, born alive which might by possibility inherit the estate as heir to the wife. 6 When a man marries a woman, seized at any time during the coverture of an estate of inheritance, in severalty, in coparcenary, or in common, and has issue by her, born alive, and-which might by possibility inherit the same estate as heir to the wife, and the wife dies in the life-time of the husband, he holds the land during her life " by the curtesy of England." ' 1 Klauber v. BiggerstafE, 47 Wis. 560-61 (1879), cases, Eyan, C. J. See also 3D 111. 399; 82 id. 77; 85 id. 163; 14 Mich. 379; 37 id. 197; 61 N. C. 23; 1 Ohio, US, 119. 2 Commonwealth v. Griffiths, 126 Mass. 252 (1879). ' Broom, Max. 133, 133; 7 Ct. CI. 332, ■• L. curialitas, attendance upon the lord's court or eurtis; i. e., being his vassal or tenant. Or, "by the courts of England,"— 2 Bl. Com. 126. From F. courtesie, favor (to the husband),— 28 Barb. 345. » [2 Bl. Com. 126. » Westoott V. Miller, 42 Wis. 465 (1877), Cole, J. Under old common law, as soon as a 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." He could do many acts to charge the land, but his estate was not " consummate" till the death o£ the wife.i The requisites are: a legal marriage; an actual seizin or possession in the wife — wherefore no curtesy can be had in a remainder or a reversion; issue born alive, during the life of the mother, capable of Inheriting the estate; and, the death of the wife.' Adopted as a common-law estate in all of the older States, though somewhat modified in some of them. The right is expressly created by statute in Delaware, Kentucky, Maine, Massachusetts, Minnesota, New Hampshii-e, Khode Island, Vermont, and Wisconsin. In Alabama, Connecticut, Illinois, Maryland, Mississippi, Missouri, New Jersey, North Carolina, Tennessee, and Virginia it is recognized by the courts as an existing estate. In California it is not allowed; realty being there held in common, and the survivor talking one-half in severalty. In Georgia the husband takes an absolute estate in all the property. In Kansas he takes one-half absolutely, upon her decease without a will; and if without issue, he takes all absolutely. In Louisiana their relation to their property does not admit of curtesy. In Nebraska the estate is given, unless she -had issue by a former husband who would take the estate. In New York it would seem that she may defeat a right by conveyance. In Ohio, Oregon, and Pennsylvania issue is not necessary. In South Carolina he takes his share in fee. In Texas any property is the common property of both. In Dakota, Indiana, Michigan, and Nevada the estate seems to be abolished. In many of the States curtesy is given, by statute, in equitable estates of which the wife is seized. The right extends to equities of redemption, contingent uses, and moneys directed to be laid out in lands for the benefit of the wife.'' In the absence of fraud, a husband who is embarrassed may convey his curtesy to a trustee for the benefit of his wife and children, for a consideration valuable in equity. 8 Compare Dower. 2. A voluntary act of kindness. An act of kindness toward another person, of the free will of the doer, without previous request or promise of reward, has sometimes been called a " voluntary curtesy." From such act the law implies no promise for remuneration. If it were otherwise, one man might impose a legal obligation upon another against his will. Hence the phrases " a voluntary curtesy will not support an assumpsit," but that " a cm-tesy moved by a previous request will." < See Protest, 8. Mac A 6.3; 15 Ark. 48.3; 43 Miss. 633; 8 Neb. 525; 14 S. C. 307; 8 Baxt.361; C Mo. Ap. 416, 549. ' 2 Bl. Com. 127. = See 1 Washburn, Real Prop., 4 ed., 164, 166 (1876). ' Hitz V. Nat. Metropolitan Bank, 111 U. S. 722 (1884).

Curtesy of England. The life estate which a husband has on the death of his wife in any lands of which she was seised, in fee simple or fee tail, during coverture, if he had lawful issue by her born alive and capable of inheriting.

or CURTESY OF ENG-

OR COURTESY, by the laws of Scotland, is a life-rent given by law to the surviving husband of all his wife’s heritage of which she died infeft, if there was a child of the marriage born alive. The child born of the marriage must be the mother’s heir. If she had a child by a former marriage, who is to succeed to her estate, the husband has no right to the curtesy while such child is alive; so that the curtesy is due to the husband rather as father to the heir, than as husband to an heiress, conformable to the Roman law which gives to the father the usufruct of what the child succeeds to by the mother, Ersk. Pr._ L. Scot. B. 2, t. 9, s. 30.