and he formerly possessed some other of the privileges of a tenant in tail, connected with branches of the law which have now become extinct (o). But, on the other hand, his estate in a general point of view, has always been considered as equivalent to an estate for life only (p); and therefore the law permits a tenant in tail of this description and an ordinary tenant for life, to make mutual alienation of their estates, by that particular method of conveyance called an exchange; which can take place, as we shall see hereafter (q), only in the case of estates that are equal in their nature. III. An estate by the curtesy of England (r), is that to which a man is by law entitled, on the death of his wife, in the lands and tenements of which she was seised, during the marriage, in fee simple or fee tail; provided he had issue by her born alive during the marriage, and 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 (s). If the lands, however, be in gavelkind, the rule is so far different that he shall hold no more than a moiety, and that only while he lives unmarried; and, on the other hand, his title attaches whether he had issue born or not (t). This estate is said, in the Mirrour (u), to have been introduced by King Henry the first; and, notwithstanding its appellation, was not peculiar to this realm (x): [for it (0) Co. Litt. 27 b; Lewis Bowles's case, 11 Rep. 80 a. (p) By 19 & 20 Vict. c. 120, s. 1, it is expressly provided, that a tenant in tail after possibility of issue extinct, shall be deemed a tenant for life for the purposes of that Act. (q) As to an exchange, vide post, bk. 11. pt. 1. c. XVII. (r) As to an estate by the curtesy, see Co. Litt. 29 a-30 b; Menvill's case, 13 Rep. 23; 2 Saund. by Wil liams, 45 n. (5), 46, n. (q), 382 a, b; (t) Robins. Gavelk. bk. ii. c. 1; and see Co. Litt. 30 a. (u) Cap. 1, s. 3. (x) It is said by Blackstone (vol. ii. p. 126, citing Craig, 1. 2, t. 19, s. 4) to have also obtained in Scotland, where it was alled Curialitas; (see also Co. Litt. 30 a.) And Blackstone [also appears to have obtained in Normandy (y); and was likewise used among the antient Almains or Germans (z). And yet it is not generally apprehended to have been a consequence of feodal tenure (a), though 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 guardian of the child, and as such is in reason entitled to the profits of 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 (b). As soon therefore as any child was born, and 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.] It may be proper to add that he was considered to hold not of the infant, but of the next lord of the fee (c). [There are four requisites necessary to make a tenancy by the curtesy: marriage, seisin of the wife, issue (d), and death of the wife (e):]-1. The marriage must be legal; hence infers that probably our word the consuetudo et lex Anglia. But (y) Grand Coustum. c. 119. (c) 2 Inst. 301; Paine's case, 8 Rep. 36 (a). (d) The requisite of "issue," does not exist in lands held in gavelkind, vide sup. p. 269. (e) Co. Litt. 30 a. so that if either void ipso facto, or avoided by a divorce, no estate by the curtesy can in either case be claimed (ƒ). 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 (g). 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 (h). The issue also must be born during the life of the mother; for if the mother dies in labour, and 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 descended to the child while yet in the mother's womb; and the estate being once so vested, shall not afterwards be taken from it (i).] The issue must also be such as is [capable of inheriting the mother's estate (k). 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 (?). The time when the issue was born is immaterial, provided it were during the coverture: for whether it were born before or after the wife's seisin of the lands, and 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 (m). The husband by the birth of the child becomes, as was before observed, tenant by the curtesy initiate (n), and may do many acts to charge the lands; but his estate is not consummate till, 4. The death of the wife, which is 29. (ƒ) See Rennington v. Cole, Noy, (g) Co. Litt. 31 a, 29 a. (h) Dyer, 25; Paine's case, 8 Rep. 34. (i) Co. Litt. 29 b. (k) Litt. s. 52. (1) Co. Litt. 29 b. (n) Ibid. 30 a. [the last requisite to make a complete tenant by the curtesy (o).] To complete our view of this species of interest, it must be added that by the statute 19 & 20 Vict. c. 120, so often referred to, which enables tenants for life, of settled estates, to make effectual leases for twenty-one years, subject to the exceptions and provisions in the act contained, a similar power is also conferred upon tenants by the curtesy of unsettled estates (p). IV. An estate in dower (q), at the common law, is the portion which a woman, on the death of her husband, is by that law entitled to claim in his lands and tenements (r). This portion amounts to the third part of them (in value); and it is to be assigned to her, to hold during the term of her natural life; except the lands be gavelkind, in which case she is entitled to a moiety; but subject, in this instance, to the condition of remaining chaste and unmarried (s). [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 implied 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 anything in general more different than the regulation of landed property, according to the English and Roman laws. Some (t) have ascribed the introduction of dower (0) Co. Litt. 30 a; see Jones v. Davies, per cur., 5 H. & N. p. 779. (p) 19 & 20 Vict. c. 120, s. 32. It is conferred also on tenants of unsettled estates, in right of a wife seised in fee. Ibid. (g) As to dower, see Co. Litt. 30 b-41 a; Rowe v. Bower, 2 N. R. 1; Slatter v. Slatter, 1 Scott, 82; Colleton v. Gareb, 6 Simon, 19; Stoughton v. Leigh, 1 Taunt. 402; (s) 2 Bl. Com. 129; Robins. [to the Normans, as a branch of their local tenures; though we cannot expect any feudal 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 is called triens, tertia, and dotalitium,) by the Emperor Frederick the second (x), who was contemporary with our King Henry the third. 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 Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals (y). However this be, the reason which our law gives for adopting it, is a very plain and sensible one: viz., for the sustenance of the wife, and the nurture and education of the younger children (z). 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 otherwise defeated. 1. [Who may be endowed. She must be the actual wife of the party at the time of his decease.] If there be a dissolution of the marriage (or, as it was formerly called, a divorce a vinculo matrimonii), she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos (a). But a judicial separation (or, as it was formerly called, a divorce a mensâ et thoro) doth not destroy the dower (b); no, not even for adultery itself, by the common law (c). [Yet now, by the statute of Westminster the second (d), if a woman voluntarily leaves (which the law calls eloping (x) Craig, 1. 2, t. 22, s. 9. (y) Mod. Un. Hist. xxxii. 91. (z) Bract. 1. 2, c. 39, s. 1; Co. Litt. 30 b. (a) Bract. 1. 2, c. 39, s. 4. But she does not lose her dower merely because the marriage was voidable, if there be no actual divorce; (Co. Litt. VOL. I. 33 a.) (b) Co. Litt. 33 a, 33 b. (c) Sidney v. Sidney, 3 P. Wms. 276. Yet, among the antient Goths, an adulteress was punished by the loss dotalitii et trientis ex bonis mobilibus viri. (Stiernh. 1. 3, c. 2.) (1) 13 Edw. 1 (stat. 1), c. 34. T |