This section is from the book "Practical Real Estate Methods For Broker, Operator & Owner", by Thirty Experts. Also available from Amazon: Practical Real Estate Methods for Broker, Operator, Owner.
Upon the death of the wife the surviving husband is entitled, for the period of his life, to an estate by curtesy in the real property of which the wife was seized during marriage, provided there was issue of the marriage born alive, capable of inheriting.
Curtesy is frequently defined as "an estate for life, accruing to the husband on the death of his wife in the real property of which she was seized in possession; in fee simple; or, fee entail, during marriage, provided he has had by her lawful issue capable of inheriting the estate, born alive, prior to her death."
Curtesy to the husband resembles dower in the wife as regards the things in which it exists and the quantum, and nature of the estate, or interest, in the consort necessary to support it.
It differs from dower primarily in that it is in favor of the husband, and not the wife; that it is not restricted to one-third of the wife's real property; that it is contingent on the birth of issue; that, after birth of issue, it exists as an estate, and that it is perfected by the wife's death without assignment.
At common law, in the case of dower, it is necessary the husband should be actually seized and possessed of the real property and so, in the case of curtesy, it is necessary that the wife should be seized and possessed of her real property - constructive ownership and possession not being sufficient.
In the absence of a statutory provision to the contrary - one not found in the statutory law of New York - there must be issue of the marriage born alive, and such issue must be capable of inheriting property in which the curtesy is claimed, in order that the estate by curtesy may become perfected in the husband. The length of the child's life is immaterial; it matters not whether it be alive at the time of the mother's death, provided, it was born alive, and the right to curtesy is not affected by its death before that of its mother. Nor need the birth of issue and the ownership of the wife be contemporaneous, consequently, if a child is born at any time during marriage, the husband is entitled to curtesy in property which the wife may previously have acquired, and which she has conveyed, or, of which she has otherwise been divested, or, in property which she acquires after the child's death. In some States the requirement of birth of issue has been removed by statute.
Curtesy, like dower, exists in lands and tenements, and, accordingly, it exists in incorporeal real things, such as rents.
Unless authorized by statute, or the power is expressly given her for the purpose, the wife cannot, by her sole conveyance during marriage, affect the husband's right to curtesy. But in some States the statute gives the husband curtesy only in property of which the wife died seized, and there a conveyance by the wife alone, during marriage, if by statute she has power to make a sole conveyance, will defeat curtesy.
Under some statutes she may by devise of a separate estate, defeat curtesy, but generally the fact that she is authorized to dispose of the property will not enable her to thereby defeat curtesy, and, apart from these statutes she cannot devise her lands even with her husband's consent, free from curtesy since this would, in effect, be devise of his property.
The curtesy is usually defeated by a conveyance by the wife before, but not after marriage, unless she is, by the conveyance to her, given power to dispose of the property; by a contract of the husband releasing curtesy; by his joinder in the conveyance with her; or, by a divorce.
In some States curtesy has been abolished by statute and in others it has been modified.
But the husband may exclude himself from curtesy by a contract made before marriage, or by one made after marriage, providing the law of that jurisdiction allows contracts between husband and wife, such as are permissible by the laws of the State of New York.
By joining with his wife in a conveyance, or mortgage, of the land, the husband thereby releases his curtesy, at least as against that grantee, and his joinder in her will may, by statute, have the same effect.
A divorce annulling the marriage - that is, a decree declaring the marriage contract to have been voidable - will deprive the husband of his estate of curtesy, but a mere dissolution of the bonds of matrimony - that is, what we commonly, but often inaccurately, call "a divorce" - does not affect the husband's rights. Many States - including New York - have enacted laws which deprive the husband of his estate by curtesy if the divorce be granted for the fault of the husband.
Upon the birth of a child capable of inheriting, the husband is said to be a tenant "by the curtesy initiate," and he becomes tenant "by the curtesy consummate" after the death of his wife. A tenant by "the curtesy initiate" has, at common law, a freehold estate in the land which he has full power to convey, and it is bound by a judgment against him and liable to sale on execution. In New York State, as in many others, however, the husband has, until his wife's death, no estate that he can convey, or which is subject to sale on execution. In this State, as in all others, the estate of curtesy, when consummated by the death of the wife, may be sold and conveyed the same as any other interest in, or ownership of, real property.
Upon the death of the wife, the husband is entitled to immediate possession, without the necessity of any assignment, such as is always necessary in the case of dower, owing to the fact that the latter estate exists in one-third only of the decedent's property. He takes it by operation of law as by descent, rather than by purchase, and for this reason he cannot, by a written disclaimer or otherwise, refuse to take it, and cause it to remain in others.
The husband thereafter holds the property with the same rights and liabilities as any life tenant. He may convey, or encumber it, and it may be subjected to execution for his debts. It must be borne in mind that it is only his life estate which can be conveyed and sold - not the fee of the property, for that descends to the heirs of the deceased mother.
In a number of those States where curtesy has been expressly abolished by statute, occasionally the husband is given, in place of curtesy, an estate similar to the widow's dower. The statutes giving married women full control of their property are generally held not to abolish curtesy, though they in effect restrict the estate to such property as the wife has at her death.
It seems that by reason of the statutes of the State of New York, the separate property of the wife may be conveyed without her husband's consent; that it is not essential he should join in the deed of conveyance, and that his estate, by the curtesy, attaches only to such property as she was seized of at the date of her death. Many conveyances, however, out of an abundance of precaution, still insist the husband join his wife in all conveyances of her separate estate.