Tenant by the curtesy of England is where a man's wife is seised of an estate of inheritance, that is, of lands and tenements in fee simple or fee tail, and he has, by her, issue born alive capable of inheriting her estate. In this case, on the death of his wife, he holds the lands for his life as tenant by the curtesy of England. There are four requisites necessary to make a tenant by the curtesy-marriage, seisin of the wife, issue, and death of the wife (u).

(q) Bellamy v. Badgerow, 1893, 24 O.R. 278.

(r) 27 H. 8 c. 10, ss. 4, 5 and 7, re-enacted as R.S.O. 1897, c. 331, ss. 5, 6 and 7, (R.S.O. 1914, appendix A.).

(s) For a discussion of these two modes of barring dower, see Armour, Real Property, 2nd ed., pp. 111-113.

(t) See Armour, Real Property, 2nd ed., p. 114, where the operation of this mode of conveyance is explained. It is there pointed out that there has been much conflict of opinion as to the efficacy, for the purpose of defeating dower, of a conveyance direct to the husband in fee to such uses as he shall appoint, and until appointment to him in fee, without the intervention of a third person as grantee to uses.

(u) See Armour, Real Property, 2nd ed., pp. 99 ff., where these requisites are discussed.

In Manitoba, Saskatchewan, Alberta and the Northwest Territories tenancy by the curtesy has been abolished (v).

At common law the husband of a legal mortgagee might have a tenancy by the curtesy upon his wife's death, but so long as the mortgage was not in default the husband's claim to curtesy was liable to be defeated by the payment of the mortgage, and after default, so long as the equity of redemption existed, equity would restrain him from asserting his legal right (w). On the other hand it was held that where a wife was mortgagor she had such a seisin of the land that upon her death her husband was entitled to curtesy (x), although in the analogous case of a husband being mortgagor the wife was not at common law entitled to dower because her husband was not seised (y).

It is provided in Ontario by the Married Women's Property Act, R.S.O. 1914, c. 149, s. 6, sub-s. 4, as follows:

(4) The real estate of any woman married after the 2nd day of March, 1872, whether owned by her at the time of her marriage or acquired by her in any way after marriage, and the rents, issues, and profits thereof respectively, shall, without prejudice and subject to the trusts of any settlement affecting the same, be held and enjoyed by her for her separate use, free from any estate therein of her husband during her lifetime, and from his debts and obligations, and from any claim or estate by him, as tenant by the curtesy; and her receipt alone shall be a discharge for any rents, issues and profits of the same; but nothing herein contained shall prejudice the right of the husband as tenant by the curtesy in any real estate of the wife which she has not disposed of inter vivos or by will.

(v) R.S.M. 1913, c. 54, s. 20; R.S.S. 1909, c. 43, s. 22; Alta. statutes, 1906, c. 19, s. 6; R:S.C. 1906, c. 110, s. 13.

(w) Co. Litt. 205, and note; Strahan, Law of Mortgages, 2nd ed., p. 128. As to dower in the mortgagee's legal estate, cf. Sec. 171, supra.

(x) Casborne v. Scarfe, 1737, 1 Atk. 603, 2 W. & T.L.C. Eq. 6. As to the dictum in this case that an equity of redemption is an estate in the land, see chapter 3, Legal Mortgage in Equity, Sec. 28.

(y) See Sec. 171, supra. As pointed out in Lewin, Law of Trusts, 12th ed., p. 948, as dower and curtesy stand exactly on the same footing upon principle, either the rejection of dower or the admission of curtesy was an anomaly.

It is provided in Ontario by the Conveyancing and Law of Property Act, R.S.O. 1914, c. 109, s. 28, as follows:

28. Where a husband has issue born alive and capable of inheriting any land to which his wife is entitled in fee simple, or fee tail, if the husband survive his wife, whether such issue live or not, the husband shall, subject to the provisions of The Married Women's Property Act, be entitled to an estate for his natural life in such land as may not have been disposed of by her deed or will; but if he has no such issue by his wife he shall not be entitled to any further or other estate or interest in such land in the event of surviving his wife, except such as may be devised to him by her will, or such as he may become entitled to under The Devolution of Estates Act.

The Married Women's Property Act and the Married Woman's Conveyances Act enable a married woman to dispose of her real and personal property as if she were a feme sole (z), and she may defeat her husband's tenancy by the curtesy by disposing of her land in her lifetime or by her will (a).

The Devolution of Estates Act, R.S.O. 1914, c. 119, s. 29, provides as follows:

29. (1) The real and personal property, whether separate or otherwise, of a married woman in respect of which she dies intestate, shall be distributed as follows: One-third to her husband if she leaves issue, and one-half if she leaves no issue, and subject thereto shall devolve as if her husband had pre-deceased her.

(2) A husband who, if this Act had not been passed, would be entitled to an interest as tenant by the curtesy in real property of his wife, may, by deed or instrument in writing executed, and attested by at least one witness, and delivered to the personal representative, if any, or if there is none, deposited in the office of the Surrogate Clerk at Toronto, within six month's after his wife's death, elect to take such interest in the real and personal property of his wife as he would have taken if this Act had not been passed, in which case the husband's interest therein shall be ascertained in all respects as if this Act had not been passed, and he shall be entitled to no further interest thereunder.

(z) See some of the provisions of the statutes quoted in chapter 2, Mortgage at Common Law, Sec. 16.

(a) Moore v. Jackson, 1893, 22 Can. S.C.R. 210, at pp. 223, 235, 238.