The estate must have been one in possession during the wife's life. So there can be no curtesy in a reversion or a remainder,53 unless the prior particular estate determined before her death, and the wife's estate thereby became vested in possession.54 This will be clearer after estates in expectancy have been discussed.55

Joint Estates

The husband has curtesy in estates held by his wife as a tenant in common or in coparcenary,56 but not in her estates in joint tenancy.57

Same - incidents

46. Estates by curtesy have the usual incidents of life estates.

53 Adair v. Lott 3 Hill (N. Y.) 182; Adams v. Logan, 6 T. B. Mon. (Ky.) 175; Stoddard v. Gibbs, 1 Sumn. 263, Fed. Cas. No. 13,468; Lowry's Lessee v. Steele, 4 Ohio, 170; Watkins v. Thornton, 11 Ohio St 367; Chew v. Commissioners, 5 Rawle (Pa.) 160; Hitner v. Ege, 23 Pa. St 305; Orford v. Benton, 36 N. H 395; Planters' Bank v. Davis, 31 Ala. 626; Malone v. Mclaurin, 40 Miss. 161; Ferguson v. Tweedy, 43 N. Y. 543; Shores v. Carley, 8 Allen (Mass.) 425; Manning's Case, 8 Coke, 96; Robertson v. Stevens, 1 Ired. Eq. (N. C.) 247; Tayloe v. Gould, 10 Barb. (N. Y.) 388; Reed v. Reed, 3 Head (Tenn.) 491; Stewart v. Barclay, 2 Bush (Ky.) 550; De Grey v. Richardson, 3 Atk. 469. There is curtesy in a reversion after a term of years, because the seisin is then m the wife. Withers v. Jenkins, 14 S. C. 597.

54 Kent v. Hartpoole, 3 Keb. 731; Doe v. Scudamore, 2 Bos. & P. 294; Boothby v. Vernon, 2 Eq. Cas. Abr. 728, 9 Mod. 147; Hooker v. Hooker, Cas. t Hardw. 13; Todd v. Oviatt 58 Conn. 174, 20 Atl. 440; Webster v. Ellsworth, 147 Mass. 602, 18 N. E. 569; Moore v. Calvert, 6 Bush (Ky.) 356; Hatfield v. Sneden, 54 N. Y. 280; Gentry v. Wagstaff, 3 Dev. (N. C) 270; Hitner v. Ege, 23 Pa. St 305; Keerl v. Fulton, 1 Md. Ch. 532; Mackey v. Proctor, 12 B. Mon. (Ky.) 433; Prater v. Hoover, 1 Cold. (Tenn.) 544; Watkins v. Thornton, 11 Ohio St 367; Shores v. Carley, 8 Allen (Mass.) 425; Tayloe v. Gould, 10 Barb. (N. Y.) 388.

55 Post, p. 278.

56 Sterling v. Penlington, 2 Eq. Cas. Abr. 730; Wass v. Bucknam, 38 Me. 360; Vanarsdall v. Fauntleroy's Heirs, 7 B. Mon. (Ky.) 401; Carr v. Givens, 9 Bush (Ky.) 679.

57 Co. Litt § 45. As to what are joint estates, see post p. 332.

The husband takes his curtesy subject, of course, to all existing incumbrances on the land.58 And on the estate becoming initiate, the husband's interest is liable for his debts,59 or he can sell and dispose of it, as he may see fit.60 No alienation of the husband alone is effectual for a longer period than his life,61 nor does the disseisin of the husband bar the rights of the wife's heirs or devisees.62 The usual incidents of life estates attach to curtesy, such as liability for waste, and the right to emblements and estovers.63 After the termination of the husband's estate by his death, the realty is disposed of according to the testamentary direction of the wife, where the wife has been given a power of testamentary disposition and has exercised it, or it is governed by the usual rules of descent

58 Barker v. Barker, 2 Sim. 249. But when Incumbrances are paid off, they will be apportioned. In re Freeman, 116 N. C. 199, 21 S. E. 110.

59 Burd v. Dansdale, 2 Bin. (Pa.) 80; Watson v. Watson, 13 Conn. 83; Rose v. Sanderson, 38 111. 247; Canby v. Porter, 12 Ohio, 79; Litchfield v. Cud-worth, 15 Pick. (Mass.) 23; Roberts v. Whiting, 16 Mass. 186; Lancaster County Bank v. Stauffer, 10 Pa. St 398; Wyatt v. Smith, 25 W. Va. 813; Hitz v. Bank, 111 U. S. 722, 4 Sup. Ct 613; Jacobs v. Rice, 33 111. 369; Gardner v. Hooper, 3 Gray (Mass.) 398. But see Evans v. Lobdale, 6 Houst (Del.) 212; Bruce v. Nicholson, 109 N. C. 202, 13 S. E. 790. But see Van Duzer v. Van Duzer, 6 Paige, Ch. (N. Y.) 366. This has been changed in some states by statute. Curry v. Bott, 53 Pa. St. 400; Staples v. Brown, 13 Allen (Mass.) 64; Welsh v. Solenberger, 85 Va. 441, 8 S. E. 91; Churchill v. Hudson, 34 Fed. 14

60 Robertson v. Norris, 11 Q. B. 916; Shortall v. Hinckley, 31 111. 219; Central Bank v. Copeland, 18 Md. 305; Ward v. Thompson, 6 Gill & J. (Md.) 349; Hutchins v. Dixon, 11 Md. 29; Denton's Guardians v. Denton's Ex'rs, 17 Md. 403; Schermerhon v. Miller, 2 Cow. (N. Y.) 439; Kottenbrock v. Cracraft, 36 Ohio St 584.

61 Flagg v. Bean, 25 N. H. 49; Meraman's Heirs v. Caldwell's Heirs, 8 B. Mon. (Ky.) 32.

62 Foster v. Marshall, 22 N. H. 491; Robertson v. Norris, 11 Q. B. 916; Miller v. Shackleford, i Dana (Ky.) 264; Lessee of Thompson's Heirs v. Green, 4 Ohio St 216; Wass v. Bucknam, 38 Me. 356. But see Melvin v. Proprietors, 16 Pick. (Mass.) 161; Weisinger v. Murphy, 2 Head (Tenn.) 674; Coe v. Manufacturing Co., 35 Conn. 175; Watson v. Watson, 10 Conn. 75.

63 Armstrong T. Wilson, 60 Bl 226; Bates v. Shraeder, 13 Johns. (N. Y.) 260

Same - how Defeated

47. Curtesy may be defeated by:

(a) Alienage of husband in some states.

(b) Annulment of marriage, and, in some states, by divorce or desertion.

(c) Termination of wife's estate.

(d) Husband's joining in wife's conveyance, and, formerly, by husband's feoffment in fee.

(e) The wife's conveyance of her estate, in some states.

Alienage of the husband was formerly a bar to curtesy,64 but the rule has been changed by statute in many states.65 If the wife's estate is defeated by title paramount during her life, the husband, of course, loses his curtesy.66 At common law, a feoffment in fee by the husband forfeited his curtesy,67 but, as already seen, this is not now the rule in most states.68 Annulment of the marriage or divorce,69 especially for the husband's fault,70 and in some states desertion of the wife, forfeits all rights to curtesy.71 At common

64 Foss v. Crisp, 20 Pick. (Mass.) 121; Reese v. Waters, 4 Watts & S. (Pa.) 145; Mussey v. Pierre, 24 Me. 559; Den v. Ward, 4 Dev. (N. C.) 247; Den v. Sauls, 1 Jones (N. C.) 70.

65 1 Stim. Am. St Law, § 102; 1 Washb. Real Prop. (5th Ed.) p. 80, note; 1 Shars. & B. Lead. Cas. Real Prop. 276.

66 Co. Litt 241a (Butl & H. Notes) note 4.

67 4 Kent, Comm. 83; French v. Rollins, 21 Me. 372; Wells v. Thompson, 13 Ala. 793. But not a bargain and sale deed. Meraman's Heirs v. Caldwell's Heirs. 8 B. Mon. (Ky.) 32; Mckee's Lessee v. Pfout, 3 Dall. (Pa.) 486; a modern statutory deed, Miller v. Miller, Meigs, 484; nor a lease in fee, Grout v. Townsend, 2 Hill (N. Y.) 554.

68 Ante, p. 59.

69 Burgess v. Muldoon, 18 R. I. 607, 29 Atl 298. But see Meacham v. Bunt-ling, 156 111. 586, 41 N. E. 175.

70 l stim. Am. St Law, §§ 3307, 6247, 6248, 6306; Wheeler v. Hotchkiss, 10 Conn. 225; Mattocks v. Stearns, 9 Vt 326; Schuster v. Schuster, 93 Mo. 438, 6 S. W. 259. But not against prior assignees of the husband. Gillespie v. Worford, 2 Cold. (Tenn.) 632. But not divorce a mensa et thoro. Smoot v. Lecatt 1 Stew. (Ala.) 590; Rochen v. Lecatt 2 Stew. (Ala.) 429.

71 1 Stim. Am. St Law, § 3307; Bealor v. Hahn (Pa. Sup.) 19 Atl 74; Hart v. Mcgrew (Pa, Sup.) 11 Atl 617

Real Prop.-6 law the wife cannot, by her conveyance, defeat the right of curtesy; 72 but the married women's acts in some cases give the wife power to dispose of her estate so as to cut off curtesy,73 and in the other states the husband may do so by joining in his wife's conveyance.74 He may be obliged to elect between curtesy and a devise by the wife,75 or, where the husband is given dower by statute, it would be barred by jointure or antenuptial settlement or contract,76

Same - statutory Changes

48. In some states curtesy exists as at common law, but in others it has been abolished or made the same as dower.

A number of statutory changes in the estate by curtesy have already been mentioned, but in some states there has been legislation which has made radical changes in the estate itself. In many states curtesy has been abolished by statute, in some the estate is made the same as dower, and in others a distributive share is given.77 So, too, the changes effected by the married women's acts, already mentioned,78 have nearly abolished curtesy initiate by giving wives extensive powers to control and dispose of their realty.79

72 Mildmay's Case, 6 Coke, 41; Mullany v. Mullany, 4 N. J. Eq. 16; Pool v. Blakie, 53 III 495; Cooper v. Macdonald, 7 Ch. Div. 288; Robinson v. Buck. 71 Pa. St 386.

73Thurber v. Townsend, 22 N. Y. 517; Breeding v. Davis, 77 Va. 639; Browne v. Bockover, 84 Va. 424, 4 S. E. 745; Alexander v. Alexander, 85 Va. 353, 7 S. E. 335; Comer v. Chamberlain, 6 Allen (Mass.) 166; Silsby v. Bullock, 10 Allen (Mass.) 94. And see Burke v. Valentine, 52 Barb. (N. Y.) 412; Scott v. Guernsey, 60 Barb. (N. Y.) 163; Oatman v. Goodrich, 15 Wis. 589; Tyler v. Wheeler, 160 Mass. 206, 35 N. E. 666.

74 Stewart v. Ross, 50 Miss. 776; Haines v. Ellis, 24 Pa. St 253; Jackson v. Hodges, 2 Tenn. Ch. 276; Carpenter v. Davis, 72 ILL 14. Or in her will Mc-bride's Estate, 81 Pa. St 303.

75 l Stim. Am. St. Law, §§ 3304-3306.

76 1 Stim. Am. St Law, §§ 3303, 3304, 6440.

77 1 Stim. Am. St Law, art. 330. In several states the husband has no curtesy in lands which descend to the issue of the wife by a former husband. Id. § 3302 B. Further, as to the statutory changes, see 1 Shars. & B. Lead. Cas. Real Prop. 286; 1 Washb. Real Prop. (5th Ed.) 170; Williams, Real Prop. (17th Am. Ed.) note 375; Smith v. Smith, 21 D. C. 289.