(p) Co. Litt. 31 a.
(q) 2 Black. Com. 131.
(r) Litt. ss. 419, 421. (s) Co. Litt. 253 b.
(t) Perk. 470.
There still remains, however, the section of Littleton, to which we have before referred (y), as an apparent authority on the other side. Littleton expressly says, that when the issue may, by possibility, inherit, of such an estate as the wifc hath, as heir to the wife, the husband shall have his curtesy, but otherwise not; and we have seen that, according to Lord Coke's interpretation, to inherit as heir to the wife, means here to inherit from the wife as the stock of descent. But the legitimate mode of interpreting an author certainly is to attend to the context, and to notice in what sense he himself uses the phrase in question on other occasions. If now we turn to the very next section of Littleton, we shall find the very same phrase made use of in a manner, which clearly shows that Littleton did not mean, by inheriting as heir to a person, inheriting from that person as the stock of descent. For, after having thus laid down the law as to curtesy, Littleton continues : " And, also, in every case where a woman taketh a husband seised of such an estate in tenements, etc, so as, by possibility, it may happen that the wife may have issue by her husband, and that the same issue may, by possibility, inherit the same tenements of such an estate as the husband hath, as heir to the husband, of such tenements she shall have her dower, and otherwise not" (z). Now, nothing is clearer than that a wife was entitled to dower out of the lands of which her husband had only seisin in law (a); and nothing, also, is clearer than that a seisin in law only was insufficient to make the husband the stock of descent: for, for this purpose, an actual seisin was requisite, according to the rule "seisina facit stipitem." In this case, therefore, it is obvious that Littleton could not mean to say that the husband must have been made the stock of descent, by virtue of having obtained an actual seisin: for that would have been to contradict the plainest rules of law. What, then, was his meaning ? The subsequent part of the same section affords an explanation: "For, if tenements be given to a man and to the heirs which he shall beget of the body of his wife, in this case the wife hath nothing in the tenements, and the husband hath an estate tail as donee in special tail. Yet, if the husband die without issue, the same wife shall be endowed of the same tenements, because the issue which she, by possibility, might have had by the same husband, might have inherited the same tenements. But, if the wife dieth leaviug her husband, and after the husband taketh another wife and dieth, his second wife shall not be endowed in this case, for the reason aforesaid." This example shows what was Littleton's true meaning. He was not thinking, either in this section or the one next before it, of the husband or wife being the stock of descent, instead of some earlier ancestor. He was laying down a general rule, applicable to dower as well as to curtesy; namely, that if the issue that might have been born in the one case, or that were born in the other, of the suiwiving parent, could not, by possibility, inherit the estate of their deceased parent, by right of representation of such parent, then the surviving parent was not entitled to dower in the one case, or to curtesy in the other. It is plain that, in the example just adduced, the issue of the husband by his second marriage could not possibly inherit his estate, which was given to him and the heirs of his body by his first wife; the second wife, therefore, was excluded from dower out of this estate. And, in the parallel case of a gift to a woman and the heirs of her body by her first husband, it is indisputable that, for a precisely similar reason, her second husband could not claim his curtesy on having issue by her; for such issue could not possibly inherit their mother's estate. All that Littleton then intended to shite with respect to curtesy, was the rule laid down by the Statute de Donis (b), which provides that, where any person gives lands to a man and bis wife and the heirs of their bodics, or where any person gives land in frankmarriage, the second husband of any such woman shall not have any thing in the laud so given, after the death of his wife, by the law of England, nor shall the issue of the second husband and wife succeed in the inheritance (c). When the two sections of Littleton are read consecutively, without the introduction of Lord Coke's commentary, their meaning is apparent; and the intervening commentary not only puts the reader on the wrong clue, hut hinders the recovery of the right one, by removing to a distance the explanatory context.
(u) Co. Litt. 29 a. (.x) 2 Black. Com. 127. (y) Sect. 52.
(z) Litt. s. 53.
(a) Watk. Descents, 32 (42, 4th ed.).
(b) 13 Edw. I. c. l.
If our construction of Littleton he the true one, it throws some light on the question discussed in Appendix (B), on the course of descent amongst coparceners. We there endeavoured to show that the issue of a coparcener always stood in the place of their parent, by right of representation, even where descent was traced from some more remote ancestor as the stock. Littleton, with this view of the subject in his mind, and never suspecting that any other could be entertained, might well speak generally of issue inheriting as heir to their parent, even though the share of the parent might have descended to the issue as heir to some more remote ancestor. The authorities adduced in Appendix (B) thus tend further to explain the language of Littleton; whilst the language of Littleton, as above explained, illustrates and confirms the authorities previously adduced.
Having at length arrived at the true principles of the old law, the application of them to the state of circumstances produced by the new law of inheritance will be very easy. A coparcener dies leaving a husband who has had issue by her, and leaving one or more sisters surviving her. The descent of her share is now traced from their common parent, the purchaser. But, in tracing this descent, we have seen, in Appendix (B), that the issue of the deceased coparcener would inherit her entire share by representation of her. And the condition which will entitle her husband to curtesy out of her share appears to be, that his issue might possibly inherit the estate by right of representation of their deceased mother. This condition, therefore, is obviously fulfilled, and our conclusion consequently is, that the husband of a deceased coparcener, who has had issue by her, is entitled to curtesy out of the whole of her share. But in order to arrive at this conclusion, it seems that we must admit, first, that Lord Coke has endeavoured to support the law by one reason too many; and, secondly, that one laudatory flourish of Blackstone has been made without occasion.
(c) See Bac. Abr. tit. Curtesy of England (C), 1.