The first requisite of curtesy is lawful marriage. If the marriage was absolutely void, no curtesy will attach; but if it is only voidable, and is not annulled during the wife's life, then the husband will take his curtesy.27 Birth of Issue-curtesy Initiate.
The husband's right to curtesy is said to be initiate as soon as there is issue of the marriage.28 But such issue must be capable of inheriting the mother's estate. Thus the birth of a daughter would give the husband no curtesy in lands of which the wife was tenant in tail male, because the daughter could not inherit the estate.29 And the issue must be born alive30 and during the wife's life; that is, it will not be sufficient, to give curtesy, if the mother die in childbirth, and the child is afterwards taken from the womb by the Caesarean operation.31 It is immaterial whether the birth of issue is before or after the wife's estate is acquired.32
26 2 Bl. Comm. 126; Alexander v. Warrance, 17 Mo. 228. There is considerable difference of opinion as to the origin of curtesy. 1 Washb. Real Prop. (5th Ed.) p. 170; Wright, Ten. 192, 193; 2 Bl. Comm. 12G. Many questions which might arise in connection with curtesy will be found discussed in treating of dower (post, p. 83). The rules stated there may be applied by analogy to the estate by curtesy if similar questions should arise.
27 2 Bl. Comm. 127; 1 Washb. Real Prop. (5th Ed.) 172; Wells v. Thompson, 13 Ala. 793.
28 Schermerhorn v. Miller, 2 Cow. (N. Y.) 439; Comer v. Chamberlain, 6 Allen (Mass.) 166; Ryan v. Freeman, 36 Miss. 175. A child born out of wedlock, but made legitimate by a subsequent marriage, gives curtesy. Hunter v. Whitworth, 9 Ala. 965.
29 Day v. Cochran, 24 Miss. 261; Heath v. White, 5 Conn. 228, 236; Barker v. Barker, 2 Sim. 249; Sumner v. Partridge, 2 Atk. 46.
30 Brock v. Kellock, 30 Law J. Ch. 498; Goff v. Anderson, 91 Ky. 303, 15 S. W. 866; In re Winne, 1 Lans. (N. Y.) 508; Ryan v. Freeman, 36 Miss. 175; Doe v. Roe, 5 Houst (Del.) 14; Goff v. Anderson, 91 Ky. 303, 15 S. W. 866.
31 Co. Litt 29b; Marsellis v. Thalhimer, 2 Paige (N. Y.) 42.
32 Co. Litt. 29b; 2 Bl. Comm. 128; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Comer v. Chamberlain, 6 Allen (Mass.) 166; Guion v. Anderson, 8 Humph. (Tenn.) 307; Heath v. White, 5 Conn. 236; Witham v. Perkins, 2 Me. 400. Cf. Hathon v. Lyon, 2 Mich. 93.
§§ 43-44) curtesy. 75
If curtesy has once become initiate, it will not be defeated by the subsequent death of the issue, either in the mother's lifetime or after her death.33 In several states the birth of issue is made unnecessary by statute,34 and in Pennsylvania the husband has curtesy if the issue, had any been born, could have inherited.35 Seisin of Wife.
By the common-law rule, in order that the husband might have curtesy, it was essential that the wife be seised in deed of fact,36 or, less accurately, that she have actual seisin.37 However, the rule as to seisin in deed has been relaxed,38 and seisin in law is held sufficient to give curtesy in many states, particularly in the case of the wife's taking by descent,39 and where the land is wild and unoccupied.40 The seisin of a lessee is regarded as seisin of the wife.41
33 Co. Litt 29b; 2 Bl Comm. 128; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Heath v. White, 5 Conn. 235; Foster v. Marshall, 22 N. H. 491.
34 1 Stim. Am. St Law, § 3301 B; Kingsley v. Smith, 14 Wis. 360.
35 Brightly, Purd. Dig. Pa. "Intestates," 4.
36 The reason assigned for this is that the husband can at any time perfect the wife's seisin by making an entry. 2 Ham. Bl Comm. 233, note 32; Van-arsdall v. Fauntleroy's Heirs, 7 B. Mon. (Ky.) 401; Mercer v. Selden, 1 How. 37. For the difference between seisin in fact and in law, see ante, p. 31.
37 Co. Litt 29a; Stinebaugh v. Wisdom, 13 B. Mon (Ky.) 467; Petty v. Molier, 15 B. Mon. (Ky.) 591; Mercer v. Selden, 1 How. 37; Den v. Demarest, 21 N. J. Law, 525; Parker v. Carter, 4 Hare, 400, 416; Davis v. Mason, 1 Pet 507. Contra, Bush v. Bradley, 4 Day (Conn.) 298.
38 Wass v. Bucknam, 38 Me. 356; Reaume v. Chambers, 22 Mo. 36, 54; Bush v. Bradley, 4 Day (Conn.) 298; Kline v. Beebe, 6 Conn. 494; Mitchell's Lessee v. Ryan, 3 Ohio St 377; Powell v. Gossom, 18 B. Mon. (Ky.) 179; Ellsworth v. Cook, 8 Paige (N. Y.) 643; Mercer v. Selden, 1 How. 37; Mccorry v. King's Heirs, 3 Humph. (Tenn.) 267; Adams v. Logan, 6 T. B. Mon. (Ky.) 175; Wat-kins v. Thornton, 11 Ohio St 367; Rabb v. Griffin, 26 Miss. 579; Childers v. Bumgarner, 8 Jones (N. C.) 297.
39 Borland v. Marshall 2 Ohio St. 308; Day v. Cochran, 24 Miss. 261; Adair v. Lott 3 Hill (N. Y.) 182; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Chew v. Commissioners, 5 Rawle (Pa.) 160; Stephens v. Hume, 25 Mo. 349; Harvey v. Wickham, 23 Mo. 115; Carr v. Givens, 9 Bush (Ky.) 679; Enis v. Dittey (Ky.) 23 S. W. 366; Merritt's Lessee v. Horne, 5 Ohio St 307; Eager v. Furnivall, 17 Ch. Div. 115; Withers v. Jenkins, 14 S. C. 597; Mckee v. Cottle, 6 Mo. App. 416.
40 Jackson v. Sellick, 8 Johns. (N. Y.) 262; Green v. Liter, 8 Cranch, 249; Davis v. Mason, 1 Pet 503; Mettler v. Miller, 129 I1l 630, 22 N. E. 529; Barr
41 See note 41 on following page.
Possession by a grantee of the husband is sufficient to give curtesy.42 The rule as stated above does not apply to incorporeal hereditaments, of which no actual possession is possible.43