A devisee, however, stands in the same situation as a purchaser. If he dissents, the estate passes to the heir in the same manner as if no will had been made. It is entirely optional with him to take or refuse the estate devised. Townson v. Tickell et al., 3 Barn. & AId. 31.
In the present case, the disclaimer was made by one who was entitled to the property as tenant by the curtesy. Is he, in this respect, like a grantee, or an heir? This species of estates has sometimes been classed with those acquired by purchase. But it is rather an estate thrown upon the tenant by operation of law. Co. Litt. 18 b. It partakes more of the character of an estate acquired by descent than by purchase. Immediately upon the death of the wife, the estate vests in him. Like the heir, he cannot, by refusing to take it, cause it to remain in the wife; nor can he, by a disclaimer, transfer it to others. The estate thus vested in him, becomes immediately liable for his debts; and he cannot, by any refusal to take the property, defeat the claims of his creditors.
The disclaimer offered in evidence could have no effect in showing a title in the plaintiffs; and was properly rejected by the court.
We are, therefore, satisfied that no new trial should be granted.1
(2.) The Essentials for Curtesy.
(a.) Lawful Marriage.2
(o.) Birth of issue.3
The Chancellor in
In the analogous case of a tenancy by the curtesy it is well settled that the child must be born alive in the lifetime of the mother to entitle the father to the estate. And even the delivery of the child alive, by the Caesarian operation, after the death of the mother, is not sufficient.
1 As to the nature of disclaimers in general, see Jackson ex dem. Ten Eyck v. Richards, 6 Cow. (N. Y.) 617. - Ed.
2 See cases under dower below. - Ed.
3 A legislative act will not be unconstitutional because it defeats the expectation which the father of a living child had, previous to the act, of succeeding, as tenant by the curtesy, to any lands the wife might acquire subsequent to the act. Thurber v. Townsend, 22 N. Y. 517 (1860). - Ed.
(c.) Seisin of wife.
43 New York, 543. - 1871.
Action by Ferguson, claiming as tenant by the curtesy, to recover the possession and rents and profits of certain land. Plaintiff failed in the court below and takes this appeal.
Plaintiff's wife, prior to her marriage, was tenant in common with another of certain lands. Before her marriage deeds were interchanged between the co-tenants by which the lands were partitioned until either should die without issue and no longer. The wife died, leaving issue the defendant. The other co-tenant died leaving no issue and this defendant acquired an interest in his share. Fergu. son died after this action was begun and it is continued by his executrix.
Folger, J. - This action cannot be sustained unless Harvey D. Ferguson, the testator, had in his lifetime an estate as tenant by the curtesy in the premises, or some part of them, which were recovered in the action of the respondents against Samuel G. Green, judgment wherein was rendered on the 1st of February, 1861. To establish such tenancy there were needed four things: Marriage, issue of the marriage, death of the wife, and her seisin, during marriage, of the premises in question. There is no dispute but that all of these existed, save the last.
It is a general rule that to support a tenancy by the curtesy there must be an actual seisin of the wife. Mercer's Lessee v. Selden, 1 How. U. S. 37-54. The rule is not inflexible. There are exceptions to it. The possession of a lessee under a lease reserving rent, is an actual seisin, so as to entitle the husband to a life estate in the" land as a tenant by the curtesy, though he has never received or demanded rent during the life of his wife. Ellsworth v. Cook, 8 Paige, 646. Wild, unoccupied or waste lands may be constructively in the actual possession of the wife. 8 J. R. 271. A recovery in an ejectment has been held equivalent to an actual entry. 8 Paige, supra. And it has been held that, where the wife takes under a deed, and there is no adverse holding at the time, that actual entry is not necessary. Jackson v. Johnson, 5 Cow. 74. But the facts of this case open not the door for any of these exceptions to come in. Before the marriage of the testator to his wife, she did convey by quit-claim deed the premises in question for a term which was in its duration as long as her life. The grantee in that deed, thus acquiring an estate for her life in the lands, did enter, and he and his assign held the possession up to her death and afterward. It is true that this deed was one of two, interchanged between the parties to effect an amicable partition of premises held by them at that time in common. But the execution of these deeds, if followed, as it was, by possession in severalty, was valid and sufficient to sever the possession for the lifetime of the testator's wife. Baker v. Lorillard, 4 N. Y. 257; Carpenter v. Schermerhorn, 2 Barb. Ch. 314, 21. And from the time of the execution by her of that deed, until the day of her death, she had not, nor had her husband, actual possession of the premises; she nor he made claim to the possession of them; she nor he received rent or other profit from them; she nor he had right to ask possession or rent or profit. In short, there did not any fact exist which, for her lifetime, after the execution of the deed, gave her a constructive possession or right of possession. On the contrary, there did exist in another, so far as she and her husband were concerned, exclusive possession, and right of such possession, for a term which ran for her life. There was, then, an outstanding estate for life in the premises, which, beginning before her coverture began, did not end until her coverture ended. And it is settled, that if there be an outstanding estate for life, the husband cannot be the tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during coverture. Stoddard v.Gibbs, 1 Sumner, 263-70; In re Cregier, 1 Barb. Ch. R. 598.