If what we have said be well founded, the father is under a legal as well as moral obligation to provide for his legitimated offspring, above what the law requires him to do for a bastard child. To enable him to perform the duty of maintenance, we think he clearly must, at common law, be entitled to the lands of which the wife was seised during coverture. That this much favored estate by the curtesy may be upheld and secured, the husband may, by a kind of legal fiction, pro re nata, be presumed to have married previous to the birth of the child. This presumption could do harm to no one, as it would not, of course, be carried so far as to divest interests which the wife had passed from herself between the birth of the child and the marriage.

Having attained a conclusion favorable to the plaintiff in error upon the first point, we need not consider the second. Let the judgment be reversed and the cause remanded.1

(3.) To What Estates Curtesy is an Incident. (a.) In general.

Houghton V. Hapgood

13 Pickering (Mass.), 154. - 1832.

[Reported herein at p. 24.]

1 In this case all of the children were born before the marriage of their parents. In New York "An Act to legitimize children whose parents have intermarried after the birth of such children" was passed in 1895, ch. 531, and is now § 18 of the Domestic Relations Law. - Ed.

Ferguson V. Tweedy

43 New York, 543. - 1871.

[Reported herein at p. 628.]

Howard, J., in

Wass V. Bucknam

38 Maine, 356. - 1854.

"Petition for partition." The entry of one tenant in common into the common estate, and his subsequent possession is presumed to be the entry and possession of all the co-tenants, unless otherwise explained and controlled. Each has a right to the possession of the whole estate; and such is the character of their estate that such possession is necessary for the full enjoyment of their legal rights respectively. So if one occupy the whole estate, it is not necessarily nor by presumption of law, adverse to his co-tenants; but is in accordance with his title, and consistent with his rights, and in support of their common title. He is presumed to be in of right, and not for the purpose of excluding his co-tenants, or with the intention of effecting an ouster or disseisin.

There is no satisfactory evidence that the respondents, and those under whom they claim, ever asserted an exclusive right, or manifested an intention to hold the estate adversely to their co-tenants. The evidence of the character of their occupation and improvement, is consistent with the legal rights and interests of all concerned. Whether there were any surplus rents and profits, or in what manner the rents received were disposed of, does not appear.

Anna, the mother of the petitioners, was seised in her own right, of her interest in the premises, in common with the co-tenant, under whom the respondents claim, his seisin as co-tenant being as well for her as himself; and upon her death, her husband became tenant by the curtesy, and her children were entitled to the remainder, and to her interest upon the termination of the particular estate of the husband by his death. Jackson v. Sellick, 8 Johns, 202, 207; Davis v. Nason, 1 Peters, 507, 508; 4 Kent's Com. 29, 30. Where it is shown that the rigid doctrine of the English law, requiring the wife to be seized in fact and in deed, in order to entitle the husband to his curtesy, has been modified and relaxed in favor of his right.

If, during the life of the husband, there was an adverse possession of the estate for more than forty years, as claimed by the respondents, it would not defeat the petitioners. So long as they were out of possession, and without the right or power to acquire it, as was the case during the tenancy of the husband, no possession of another could be adverse to them, and no law of limitation could affect them. The law will not suffer a party to be so far circumvented as to be deprived of his interests under its sanctions, and for the imputed laches of others, while it renders him incompetent to assert his rights. 2 Salk. 423; Dow v. Danvers,7 East, 321; Jackson v. Schoonmaker, 4 Johns, 401; Whitam v. Perkins, 2 Maine, 400."

(b.) Fees subject to executory limitation.

Hatfield V. Sneden

54 New York, 280. - 1873.

Ejectment by an executory devisee against the husband of the (deceased) owner of the estate which was subject to the executory devise. Plaintiff succeeded below and defendant appeals to this court.

Johnson, C. - Upon the true construction of the will of Mary Wood, the estate of her daughter was a fee determinable upon the happening of the events on which the devise to the plaintiff was to take effect. The language of the primary devise is to the daughter and her heirs forever. Then followed a clause which, in the event of the return to the county of the son of the testatrix (the son was supposed lost at sea), gave them the estate in equal shares. The testatrix further directed that if the daughter should never have any children, or a child living at her decease, if her son should not return then the devised estate was to go to the plaintiff in fee.

In the first place it is to be observed that the earlier part of the phrase in respect to the daughter's issue is inoperative and meaningless, taken in connection with the latter part of the same clause. If the daughter had no child living at her decease, it was of no consequence how many she might have had at an earlier period. If she had a child living at her decease, then, of course, it could not be true that she never had any children. The substance of the whole clause is the same as if the testatrix had said, if my daughter, at her decease, leaves no child living, and if my son does not return, then the estate is to go to the plaintiff in fee. The concurrence of both these events was necessary to carry the estate to the plaintiff. If the son returned, Hatfield took nothing irrespective of the question of the daughter leaving a child living. If the daughter left a child living, and the son did not return, Hatfield took nothing, and her issue living at her death would not have taken under the testatrix's will, but by descent from their mother, out of the fee devised to her, which had not been defeated by the prescribed events.