Referred to p. 220, n. (a).
On the decease of a "woman entitled by descent to an estate in fee simple, is her husband, having had issue by her, entitled, according to the present law, to an estate for life, by the curtesy of England, in the whole or any part of her share ? (a)
In order to answer this question satisfactorily, it will be necessary, first, to examine into the principles of the ancient law, and then to apply those principles, when ascertained, to the law as at present existing. Unfortunately the authorities whence the principles of the old law ought to be derived do not appear to be quite consistent with one another; and the consequence is, that some uncertainty seems unavoidably to hang over the question above propounded. Let us, however, weigh carefully the opposing authorities, and endeavour to ascertain on which side the scale preponderates.
Littleton, " not the name of the author only, but of the law itself," thus defines curtesy: "Tenant by the curtesie of England is where a man taketh a wife seised in fee simple or in fee tail general, or seised as heir in tail especial, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life by the law of England. And he is called tenant by the curtesie of England, because this is used in no other realme, but in Eugland only " (b). And, in a subsequent section, he adds, "Memorandum, that, in every case where a man taketh a wife seised of such an estate of tenements, etc, as the issue which he hath by his wife may by possibility inherit the same tenements of such an estate as the wife hath, as heir to the wife; in this case, after the decease of the wife, he shall have the same tenements by the curtcsie of England, but othenvise not" (c). "Memorandum," says Lord Coke, in his Commentary (d), "this word doth ever betoken some excellent point of learn-"ing." Again, "As heir to the wife. This doth imply a secret of law; for, except the wife be actually seised, the heir shall not (as hath been said) make himself heir to the wife; and this is the reason, that a man shall not be tenant by the curtesie of a seisin in law." Here, we find it asserted by Littleton, that the husband shall not be tenant by the curtesy, unless he has had issue by his wife capable of inheriting the land as her heir; and this is explained by Lord Coke to be such issue as would have traced their descent from the wife, as the stock of descent, according to the maxim, " scisina facit stipitem." Unless an actual seisin had been obtained by the wife, she could not have been the stock of descent; for the descent of a fee simple was traced from the person last actually seised; "and this is the reason," says Lord Coke, " that a man shall not be tenant by the curtesy of a mere seisin in law." The same rule, with the same reason for it, will also be found in Paine's case (e), where it is said, "And when Littleton saith, as heir to the wifc, these words arc very material; for that is the true reason that a man shall not be tenant by the curtesy of a seisin in law; for, in such case, the issue ought to make himself heir to him who was last actually seised." The same doctrine again appears in Blackstone (f). "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 had never begotten any issue that can be heir to those lands, he shall not bo tenant of them by the curtesy. And hence," continues Black-stone, in his usual laudatory strain, "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." Here we have, indeed, a formidable array of autho-rities, all to the point, that, in order to entitle the husband to his curtesy, his wife must have been the stock from whom descent should have been traced to her issue; for the principal and true reason that there could not be any curtesy of a seisin in law is stated to be, that the issue could not, in such a case, make himself heir to the wife, because his descent was then required to be traced from the person last actually seised.
(a) The substance of the following observations has already appeared in the "Jurist" news-paper Eor March 14, 1846, (b) Litt, s. 35.
(c) Litt, s. 52. (d) Co. Litt. 40 a.
(e) 8 Rep. 36 a.
(f) 2 Black. Comm. 128.
Let us, then, endeavour to apply this principle to the present law. The act for the amendment of the law of inheritance (g) enacts (h), that, in every case, descent shall be traced from the purchaser. On the decease of a woman entitled by descent, the descent of her share is, therefore, to be now traced, not from herself, but from her ancestor, the purchaser from whom she inherited. With respect to the persons to become entitled, as heir to the purchaser on this descent, if the woman be a coparcener, the question arises, which has already been discussed (i), whether the surviving sister equally with the issue of the deceased, or whether such issue solely, are now entitled to inherit ? And the conclusion at which we arrived was, that the issue solely succeeded to their mother's share. But, whether this be so or not, nothing is clearer than that, on the decease of a woman entitled by descent, the persons who next inherit take as heir to the purchaser, and not to her; for, from the purchaser alone can descent now be traced; and the mere circumstance of having obtained an actual seisin does not now make the heir the stock of descent. How, then, can her husband be entitled to hold her lands as tenant by the curtesy? If tenancy by the curtesy was allowed of those lands only of which the wife had obtained actual seisin, because it was a necessary condition of curtesy that the wife should be the stock of descent, and because an actual seisin alone made the wife the stock of descent, how can the husband obtain his curtesy in any case where the stock of descent is confessedly not the wife, but the wife's ancestor? Amongst all the recent alterations of the law, the doctrine of curtesy has been left untouched; there seems, therefore, to be no means of determining any question respecting it, but by applying the old principles to the new enactments, by which, indirectly, it may be affected. So far, then, as at present appears, it seems a fair and proper deduction from the authorities, that, whenever a woman has become entitled to lands by descent, her husband cannot claim his curtesy, because the descent of such lands, on her decease, is not to be traced from her.