Husband and wife still considered as one person.
Gift to husband and wife and a third person.
Gift to husband and wife and their heirs.
They take by entireties.
(k) Stat. 33 & 34 Vict. c. 93, s. S.
(l) Ante, pp 128, 132.
(m) I.itt. s. 291; Gordon v. Whieldon, ll Beav. I70; Re Wylde,2 De Gex, M. & G. 724.
If the wife should survive her husband, her estates in fee simple will remain to herself and her heirs, after his death, unaffected by any debts which he may have incurred, or by any alienation which he may have attempted to make; for, although the wife, by marriage, is prevented from disposing of her fee simple estates, either by deed or will, yet neither can the husband, without his wife's concurrence, make any disposition of her lands to extend beyond the limits of his own interest. If, however, he should survive his wife, he will, in case he has had issue by her born alive, that may by possibility inherit the estate as her heir, become entitled to an estate for the residue of his life in such lands and tenements of his wife as she was solely seised of in fee simple, or fee tail in possession (s). The husband, while in the enjoyment of this estate, is called a tenant by the curtesy of England, or, more shortly, tenant by the curtesy. If the wife's estate should be equitable only, that is, if the lands should be vested in trustees for her and her hens, her husband will still, on surviving, in case he has had issue which might inherit, be entitled to be tenant by the curtesy, in the same manner as if the estate were legal (t); for equity in this respect follows the law. But, whether legal or equitable, the estate must be a several one, or else held under a tenancy in common, and must not be one of which the wife was seised or possessed jointly with any other person or persons (u). The estate must also be an estate in possession; for there can be no curtesy of an estate in reversion expectant on a life interest or other estate of freehold (x). The husband must also have had, by his wife, issue born alive; except in the case of gavelkind lands, where the husband has a right to his curtesy, whether he has had issue or not; but, by the custom of gavelkind, curtesy extends only to a moiety of the wife's lands, and ceases if the husband marries again (y). The issue must also be capable of inheriting as heir to the wife (z). Thus, if the wife be seised of lands in tail male, the birth of a daughter only will not entitle her husband to be tenant by curtesy; for the daughter cannot by possibility inherit such an estate from her mother. And it is necessary that the wife should have acquired an actual seisin of all estates, of which it was possible that an actual seisin could be obtained; for the husband has it in his own power to obtain for his wife an actual seisin; and it is his own fault if he has not done so (a). A tenancy In the curtesy is not now of very frequent occurrence; the rights of husbands in the lands of their wives are, at the present day, generally ascertained by proper settlements made previously to marriage.
Husband and wife cannot convey to each other.
Unless by means of the Statute of Uses.
(n) Doed. Freestone v. Parratt, 5 T. Rep. 652. (o) Litt. s. 168. (p) Litt. ubi supra. (q) 1 Rop. Husb. and Wife, 53.
(r) Ante, p. 182.
(s) Litt. ss. 35, 52; 2 Black. Com. 126; 1 Rop. Husb. and Wife, 5; Barker v. Barker, 2 Sim. 249.
Curtesy of equitable estate.
Estate must not be joint.
Estate must be in possession.
Issue must have been born alive except as to gavelkind lands.
Issue must be capable of inheriting as heir to the wife.
The wife must have been actually seised.
(t) 1 Roper's Husband and Wife, 18.
(u) Co. Litt. 183 a; 1 Roper's Husb. and Wife, 12.
(x) 2 Black. Com. 127; Watk.
Desc. Ill (121,4th ed.)
(y) Co. Litt. 30 a, n. (1); Bac. Abr. title Gavelkind (A); Rob. Gavel, book ii. c. 1.
(z) Litt. s. 52; 8 Rep. 34 b.
By a statute of the reign of Henry VIII. (b) power was given for all persons of full age, having an estate of inheritance in fee simple or in fee tail, in right of their wives, or jointly with their wives, to make leases, with the concurrence of their wives (c), of such of the lands as had been most commonly let to farm for twenty years before, for any term not exceeding twenty-one years or three lives, under the same restrictions as tenants in tail were by the same act empowered to lease. This statute, so far as it respects tenants in tail, has already been referred to (d); and it has now been repealed by the act to facilitate leases and sales of settled estates; which empowers every person entitled to the possession or the receipt of the rents and profits of any unsettled estate, as tenant by the curtesy, or in right of a wife who is seised in fee, to demise the same (except the principal mansion-house and the demesnes thereof, and other lands usually occupied therewith), for any term not exceeding twenty-one years in possession, subject to the same restrictions as before mentioned in the case of a tenant for life (e). And any such demise will be valid against the wife of the person granting the same, and any person claiming through or under her (f). By a statute of Anne (g), every husband seised in right of his wife only, who, after the determination of his estate or interest without the express consent of the persons next immediately entitled after the determination of such estate or interest, shall hold over and continue in possession of any hereditaments, shall be adjudged to be a trespasser; and the full value of the profits received during such wrongful possession may be recovered in damages against him or his executors or administrators.
Power for hus-band and wife to lease the wife's lands.
(a) 2 Black. Com. 131; Parker v. Carter, 4 Hare, 416. In the first edition of this work a doubt is thrown out whether, under the new law of inheritance, a husband can ever become tenant by the curtesy to any estate which his wife has inherited. The reasons which have now induced the author to incline to the contrary opinion will be found in Appendix (E).