The estate by curtesy is an estate to which, at common law, a husband is entitled, for the period of his life, in all the lands and tenements of which the wife is seised during coverture in fee simple or fee tail, provided there is issue of the marriage born alive, capable of inheritance.70 Immediately upon the birth of such issue the husband is said to have an estate by the curtesy initiate, which becomes an estate by the curtesy consummate upon the death of the wife.71

Although the rights of a surviving husband, by reason of his estate of curtesy, bear a close analogy to those of a surviving wife by reason of her estate of dower, nevertheless there is a fundamental difference, in that the husband has an estate in all the wife's lands and tenements, while the wife has an estate in but a third of the husband's lands and tenements. It results from this that while an assignment of dower is necessary to vest an estate of dower in the surviving wife,72 no assignment of curtesy is necessary. Moreover, by the common law, the husband's life estate by the curtesy commences immediately on the birth of issue, while dower can be assigned only after the death of the hus band, and previously thereto the wife has merely the possibility of an estate in her husband's lands. In a number of states, however, in which curtesy consumate is still recognized as existing after the wife's death, curtesy initiate, that is, an estate in the husband before such death, merely by reason of the birth of issue, is, since the adoption of the statutes in regard to the property of married women, no longer recognized.73 In such states the husband has, until his wife's death, by reason of his right of curtesy, merely a possibility of an estate, as the wife has by reason of her right of dower.

67. Post Sec. 249.

68. Ante Sec. 195.

69. Barton v. Wilson, 116 Ark. 400, 172 S. W. 1032; Woodberry v. Matherson, 19 Fla. 778; Mills v. Marshall, 8 Ind. 54; Potter v. Worley, 57 Iowa, 66, 7 N. W. 685, 10 N. W. 298; Johnson v. Johnson, 41 Vt. 467.

70. It is stated by Mr. Digby that the name probably took its origin in the word "curia," meaning court, perhaps referring to the necessity that the husband do homage at the lord's court. See Digby, Hist. Real Prop. 173. But a different. view is taken in Pollock & Maitland's History of the English Law (volume 2, p. 412 et seg.), where it is said that the name arises from the liberality (or courtesy) of the English law in giving such an estate, as distinguished from the law of Normandy. 71. Post Sec. 244.

Sec. 237]

Estates Arising From Marriage.

The common law estate by the curtesy, commencing as it did before the death of the wife, can evidently not be regarded as having vested in the husband by descent from her, although he acquired it by operation of law and not by assignment.74 The modern curtesy, as it exists since the abolition of curtesy initiate, with merely a possibility of an estate in the husband until the wife's death, when an estate becomes vested in the husband, although it does so by operation of law, has been regarded as not vesting in him by descent or succession for the purpose of the inheritance tax.75 Such a view accords with the analogy presented by the case of dower,76 and with the common-law view of the was disseised, that is, though another was in adverse possession of the land during the whole period of coverture.83 Such a view, discarding entirely the requirement of seisin, in deed or in law, has been repudiated by other courts.84

72. Ante Sec. 233.

73. Post Sec. 246, note 89.

74. It has been decided that, curtesy vesting in the husband by operation of law, he could not refuse it, to the detriment of his creditors. Watson v. Watson, 13 Conn. 83; National Metropolitan Bank v. Hitz, 12 Dist. Col. 111.

75. In re Starbuck's Estate, 201 N Y. 531, 94 N. E. 1098 affirming 137 N. Y. App. Div. 866, 112 N. Y. Supp. 584.

76. Ante Sec. 208. note 36.

Real Property.

[Sec.Sec. 238, 239 right of curtesy, which, as above indicated, could not he regarded as taking effect by way of descent.