D. C. 200, 16 Id. 141; Chapman v. Price, 83 Va. 392, 13 S. E. 879

41. Fir Anthony Mildmay's Case, 6 Coke, 41; Mullany v. Mul-lany, 4 N. J. Eq. 16, 31 Am. Dec. 238; Chapman v. Price, 83 Va. 392, 11 S. E. 879; But see Bingham v. Weller, 113 Tenn. 70. 69 L. R. A. 370, 106 Am. St. Rep. 803, 81 S. W. 843.

42. Lowin, Trusts, 829, quoted with approval in 1 Ames, Cas. Trusts, 383. This view is well presented in Mullany v. Mullany, 4 N. J. Eq. 16, 31 Am. Dec. 238.

43. Connolly, v. Mahoney, 103 Ala. 568, 15 So. 903; Masor v. Dease, 30 Ga. 308; Luntz v Greve, 102 Ind. 173, 26 N. E. 128; Jamison v. Zausch, 227 Mo. 406, 126 S. W. 1023; Rank v. Rank,

120 Pa. 191, 13 Atl. 827; Carter v. Dale, 3 Lea (Tenn.) 710, 31 Am. Rep. 660; Morgan v. Morgan, 5 Madd. 408. And see cases cited in next following notes.

44. Neelly v. Lancaster, 47 Ark. 1 75, 58 Am Rep. 752, 1 S. W. 66; Meacham v. Bunting, 156 111. 586, 28 L. R. A. 618. 47 Am. St. Rep. 239, 41 N. E. 175; Mc-Breen v. McBreen, 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463; Cushing v. Blake, 30 N. J. Eq. 689; Ege v. Medlar, 82 Pa. St. 100; Carter v. Dale, 3 Lea (Tenn.) 710, 31 Am. Rep. 66C; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740.

45. Such is the rule in Virginia. Jones v. Jones, 96 Va. 749, 32 S. E. 463; Ratliff v. Rat-liff, 102 Va. 887, 47 S. E. 1007.

In Tennessee a contrary view was asserted in Frazier v. Hightower, 12 Heisk. (Tenn.) 94. In Bingham v. Welle-, 113 Tenn. 70, 69 L. R. A. 370, 106 Am. St. Rep. 803, 81 S. W. 843, however, that the legal estate was acquired by the wife from the husband was regarded as showing an intention to exclude dower, which was given legal effect, contrary to the common law rule that in the case of a legal estate curts cannot be excluded by a provision in the instrument of its creation.

The Virginia rule was repudiated in Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, and opposed thereto are Ogden v. Ogden, 60 Ark. 70, 46 Am. St.

Rep. 151, 28 S. W. 796; Meacham v. Bunting, 156 111. 586, 28 L. R. A. 618, 47 Am. St. Rep. ?3S, 41 N. E. 475; Tremmel v. Kleibolt, 6 Mo. App. 549, 75 Mo. 255; Sol-tan v. Soltan, 93 Mo. 307, C S. W. 95; Cushing v. Blake, 29 N. J. Eq. 399.

46. In the following cases the language was construed as showing an intention to exclude

Sec. 243]

- Contract by husband. The husband may exclude himself from curtesy by a contract made before marriage,47 or by one made after marriage, provided the law of that jurisdiction allows contracts between husband and wife, and there is no specific prohibition of a contract of this particular character.48

- Joint conveyance. By joining with his wife in a conveyance or mortgage of the land, the husband thereby releases his curtesy, at least as against the grantee or mortgagee,49 and his joinder in her will may by statute have the same effect.50 In the case of his joinder in a conveyance by her which is invalid as against the wife, it will be effective as against the husband.51 curtesy. Monroe v. Van Meter, 100 111. 347; Poole v. Blakie, 53 111. 495; Rautenbusch v. Donaldson, 13 Ky. L. Rep. 752, 18 S. W. 336; Wood v. Reamer, 118 Ky. 841, 82 S. W. 572; MeCul-loch v. Valentine, 24 Neb. 215, 38 N. .W. 854; McBreen v. Mc Breen, 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463; Stokes v. McKibbin, 13 Pa. 267; Rigler v. Cloud, 14 Pa. 361; Witners v. Jenkins, 14 S. C. 597; Haight v. Hall, 74 Wis. 152, 17 Am. St. Rep. 122, 42 N. W. 109.

47. Rochon v. Lecatt, 2 Stew. (Ala.) 429; White v. White, 20 Misc. (N. Y.) 481, 46 N. Y. Supp. 658; Hooks v. Lee, 42 N. C. 83; Teague v. Downs, 69 N. .C. 280; Charles v. Charles, 8 Gratt. (Va ) 486, 56 Am. Dec. 155.

48. Luttrell v. Boggs, 168 111 361, 48 N. E. 171; MeBreen v. McBreen, 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463. For such a specific prohibition, see Jenkins v. Hall, 26 Ore. 79. 37

Pac. 62; McCrary v. Biggers, 46 Ore. 465, 114 Am. St. Rep. 882, 81 Pac. 356.

49. Ketterer v. Nelson, 146 Ky. 7, 141 S. W. 409; Hayden v. Peirce, 165 Mass. 359, 43 N. E. 119; Haines v. Ellis, 24 Pa St. 253; Jackson v. Hodges, 2 Tenn. Ch 276; Campbell v. McBee, 92 Va. 68, 22 S. E. 807.

50. McBride s Estate, 81 Pa. St. 305; Silsby v. Bullock 10 Allen (.Mass.) 94. Compare O'Harra v. Stone, 48 Ind. 417; Middleton v. Steward, 47 N. J. Eq. 293, 20 Atl. 846; as to the construction of particular statutes.

51. Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Harred v. Myers, 21 Ark. 592, 76 Am. Dec. 409; Mettle. v. Miller, 129 111. 630, 22 N. E. 529; Meramon's Heirs v. Caldwell's Heirs, 8 B. Mon. (Ky.) 32; Mellus v. Snowman, 21 Me. 201; Melvin, v. Proprietors of Locks & Canals on Merrimack River, 16 Pick.

Real Property.

[Sec. 243

- Testamentary provision in husband's favor. As a provision in favor of the wife in the husband's will, if intended to he in lieu of dower, puts the widow to her election as between such provision and dower,52 so a provision in favor of the husband in the wife's will, in so far as she may have testamentary power, if intended to be in lieu of curtesy, might be regarded as putting him to his election.52a In one state, however, it has been held that, in view of the fact that a statutory provision naming the methods by which curtesy may be barred omitted any reference to devise, the husband's right to curtesy was not affected by bis acceptance of the devise.53 In some states there are statutory provisions for an election by the husband under such circumstances.54

- Divorce. A divorce a vinculo will deprive the husband of curtesy,55 unless a statute intervene, as when it is required that the divorce be for the fault of the husband, in order to have that effect.56 A purchaser of the land from the husband before a divorce for a cause arising after marriage will not, it has been held, be affected by the divorce.57 A divorce a mensa et thoro will not affect the husband's rights.58

(Mass.) 137; Den d. Fagan v. Walker, 27 N. C. 634.

52. Ante Sec. ?25.

52a. See Voss v. Stortz, 177 Ky. 541, 197 S. W. 964; Mosley v. Bogy, 272 Mo. 319, 198 S. W. 847.

53. Cunningham v. Cunningham, 30 W. Va. 600, 5 S. B. 139.

54. 1 Stimson's Am. St. Law Sec.Sec. 3303-3305.

55. Barrett v. Failing, 111 U. S. 523, 28 L. Ed. 505; Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Wheeler v. Hotchkiss, 10 Conn. 225; Hays v. Sanderson, 7 Bush (Ky.) 489; Moran v. Sotnes, land for the purpose of paying debts has been regarded as authorizing a sale for that purpose free of curtesy,64 and occasionally the statutory estate which the wife takes, though denominated curtesy, has been regarded as liable to the wife's debts as in effect passing by descent.64a Under a statute restricting curtesy to land of which the wife died seised, it was held that curtesy was divested by a sale under execution before the wife's death, but that in the absence of such sale, and after the wife's death, the husband's right was entitled to priority over the wife's debts.65

154 Mass. 200, 28 N. E. 152 (statute); Doyle v. Rolwing, 165 Mo. 231, 55 L. R. A. 332, 88 Am St. Rep. 416, 65 S. W. 315; Burgess v. Muldoon, 18 R. I. 607, 24 L. R. A. 798, 29 Atl. 298; Cralle v. Cralle, 79 Va. 182; Campbell v. Switzer, 74 W. Va. C09, 82 S. E. 319.

56. Meacham v. Bunting, 156 111. 586, 28 L. R. A. 318, 47 Am. St. Rep. 239, 41 N. E. 175; Wait v. Wait, 4 N. Y. 95. See Schuster v. Schuster, 93 Mo. 438. 6 S. W. 259.

57. Gillespie v. Worford, 2 Cold. (Tenn.) 632.

Sec. 243]

Estates Aristng From Marriage.

- Adultery and desertion. Adultery by the husband will not deprive him of curtesy, in the absence of a statutory provision to that effect.59

In a few states, the desertion of the wife by the husband may, under some circumstances, deprive him of curtesy.60

- Adverse possession. The husband, having a right to sue for the land, may be barred of his right of curtesy by his failure to do so for the statutory period of limitations, if the property is in the adverse possession of a third person.61

- Subjection to wife's debts. Since, at common law, a married woman could not create debts by contract during coverture, the question whether debts so contracted by her took priority over the husband's right of curtesy could not well arise. At the present day, since her disability to contract is to a considerable degree removed, the question may arise. Applying the analogy of dower,62 the husband's right of curtesy would take precedence of the wife's debts, in the absence of a statute to a contrary effect.63 But in two states at least a statute authorizing a sale of decedent's

58. Rochon v. Lecatt, 2 Stew. (Ala.) 129; Clark v. Clark, 6 Watts & S. (Pa.) 85.

59. 4 Kent, Comm. 34; Sidney v. Sidney, 3 P. Wms. 276; Wells v. Thompson, 13 Ala. 793, 48 Am. Dec. 76.

60. 1 Stimson's Am. St. Law, Sec. 3307. See Stock v. Mitchell, 252 111. 530, 96 N. E. 1076; Wel-ler v. Weller, 213 Pa. 265, 62 Atl. 859; Shumate v. Shumate, 78 W. Va. 576, 90 S. E. 824.

61. Shortall v. Hinckley, 31 111. 219; Doe d. Childers v. Bumgarner, 53 N. C. 297; Guion v. Anderson, 8 Humph. (Tenn.) 298; Crow v. Kightlinger, 25 Pa. St. 343. See Jenkins v. Dewey, 49 Kan. 49, 30 Pac. 114. Compare Hurleman v. Hazlett, 55 Iowa, 256, 7 N. W. 600.

62. Ante Sec. 222.

63. Hamptol v. Cook, 64 Ark. 353, 62 Am. St. Rep. 194, 42 S. W. 535; Myers v. Hansbrough, 202 Mo. 495, 100 S. W. 1137; Browne v. Bockover, 84 Va. 424, 4 S. E. 745; Gilkison v. Gore, 79 W. Va. 549, 91 S. E. 395.