The return of the son, and the death of the daughter, without leaving a child surviving her, were events, which, from their nature, would be determined within their two lives, and there is no objection on the ground of remoteness to the executory devise in favor of the plaintiff. Nor is there any question that both events on which the executory devise over to him was to take effect have been determined in his favor. The son, who had been absent three years in October, 1851, when Mary Wood made her will, had not returned or been heard of in March, 1861, when the daughter died without a surviving child. There is, therefore, such a presumption of his death that his return may be taken to have become impossible before the death of the daughter.
Nothing then stands in the way of the plaintiff's recovery, unless the defendant has an estate as tenant by the curtesy by reason of his marriage to the daughter and the birth of their living child during the marriage, who might, if she had outlived the mother, have inherited the whole estate in question. The defendant was, therefore, entitled to curtesy if the estate of his wife was such that curtesy could be had of it. The point thus presented has been the subject of elaborate discussion in the text-books, and of criticism upon the case of Buckworth v. Thirkell, decided by Lord Mansfield, and reported in 4 Doug., 323, Collect. Jur. 332; 3 B. & P. 652 n., and upon that of Moody v. King, 2 Bing. 447, which fully upholds it after it had been spoken of with disapprobation by Lord Alvanley in Doe v. Hutton, 3 B. & P. 643, 651. The discussion has been so full and complete that it seems impossible to throw any additional light upon the views and various arguments which have been adduced upon it. The most accurate and comprehensive discussion which I have found upon the subject is in Washburn's Law of Real Property, vol. 1, §§ 11 to 21, of ch. 6, of book 1, pp. 131-135, and §§ 31 to 33, of ch. 7, of the same book, pp. 212 - 217, in which the cases in England and in the United States are stated and examined with ability. There results a division of opinion in the courts which is irreconcilable, and in respect to which, additional discussion is not likely to afford advantage. To restate and reconsider this full discussion could only serve to incumber, by a useless parade of cases, the already too voluminous reports. The conclusion which is stated in the work cited (p. 135, § 21) is:
"If the estate of the wife be an estate of inheritance, determinable by a limitation which operates to defeat her estate at common law the right of curtesy is gone. But, if the limitation over be by way of springing use, or executory devise, which takes effect at her decease, thereby defeating or determining her original estate, before its natural expiration, and substituting a new one in its place, which could not be done at common law, the seisin and estate which she had of the fee simple or tail will give the husband curtesy." It may properly be added that the strong objection proposed to this doctrine by its critics, is to the consequence which they deem unreasonable, that an estate determined according to the terms of its creation should by the incident of curtesy or dower be prolonged. To this, it seems to me a fair and complete answer to say, as Lord Coke says in Paine's Case, 4 Coke R., part VIII., Frazer's ed., p. 212, marg. 36 a, in answer to a similar difficulty as to curtesy after an estate tail determined by the death of the wife, tenant in tail, and of her issue, "the husband's estate shall continue, for it is not derived merely out of the estate of the wife, but is created by law," "by the privilege and benefit of the law tacite annexed to the gift." This possible continuance of dower or curtesy as an incident of the estate created may well be deemed to have been in the contemplation of the testatrix, and is not an unreasonable or unnatural provision for the possible husband or wife of one clothed with a fee simple not defeasible, except upon death without children living. The only authority in this State in conflict with this conclusion is a decision at Special Term in Weller v. Weller, 28 Barb. 588, in a case of dower, which was put upon the ground of the criticism in Park on Dower, upon Lord Mansfield's decision. The decision at General Term in the present case seems to have gone upon the ground that the interest given by the will of Mary Wood to her daughter was a life estate only, with remainder to her issue, if any, as purchasers. This construction we have seen could not have been maintained, Hatfield v. Sneden, 42 Barb. 615. There is another aspect of this case which, from the record, appears to have existed, or been in the highest degree probable, viz., that the daughter was, at her mother's death, her only heir-at-law. In that case she would have been in by descent in fee, and the only effect of the devise would be to create an executory limitation to Hatfield in case of the concurrence of the two events on which the estate is given over. That she would have been in by descent the preferable title, and not by the devise, is obvious. Doe v. Timins, 1 B. & Aid. 530. In that case it would be difficult to take from the estate in fee any of the incidents which the law has attached to such an estate, and impossible to deny that her husband was entitled to curtesy according to every definition given in the books of such an estate. In this aspect we may take it that the will is silent about the absent son and his possible return, and silent about the daughter, except as both are mentioned in limiting the executory devise. That no estate is devised either to son or daughter, but that the only provision of the will is, if my son shall not return, and my daughter shall die, leaving no child living, then I devise to Hatfield. Under such a will the daughter would take just what the will in question gave her, and for exactly the same estate. Being thus in by descent, there is in the books not only no warrant of authority, but not even a suggestion that the estate in fee by descent can be deprived of any of the lawful incidents belonging to estates in fee. It is not until those are exhausted that the executory devise to Hatfield can take effect in possession.