This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In the absence of a statutory provision to the contrary, there must be issue of the marriage born alive,97 and such issue must be capable of inheriting the property in which curtesy is claimed.98 The length of the child's life is immaterial, provided it be born alive, and the right to curtesy is not affected by its death before that of its mother.99 Nor need the existence of issue and ownership of the wife be contemporaneous, and, consequently, if a child is born at any time during coverture, the husband is entitled to curtesy in property which the wife may previously have acquired, and which she has conveyed, or of which she has otherwise been divested,1 or in property which she acquires after the child's death.2 In some
Neb. 349, 15 Ann. Cas. 577, 110 N. W. 1108. See, as to dower in the analogous case, ante Sec. 214 notes 17-21.
07. Co. Litt. 29b; 2 Blackst. Comm. 127; Hunter v. Whitworth, 9 A1p 965; Heath v. White, 5 Conn. 228; Cannon v. Killen, 5 Houst (Del.) 14; Goff v. Anderson, 91 Ky. 303, 11 L. R. A. 825, 15 S. W. 866; Day v. Cochran, 24 Miss. 261; Murdock v. Murdock, 74 N. H. 77, 65 Atl. 392; Fleming v. Sexton, 172 N. C. 250, 90 S. E. 247. It is stated that the child must be born during the mother's life, and that consequently the delivery of the child by the Caesarian operation after the mother's death would not support the estate. Co. Litt. 29b; 2 Blackst. Comm. 127.
98. Litt. Sec. 52; Co. Litt. 29b; 2 Blackst Comm. 128. So, if the wife has an estate in tail male, the birth of a female child does not entitle the husband to curtesy. Id.
99. Bl. Comm. 127; Hunter v. Whitworth, 9 Ala. 965; Goff v. Anderson, 91 Ky. 303, 11 L. R. A. 825, 15 S. W. 866; Taliaferro v. Burwell, 4 Call. (Va.) 321; Travis v. Sitz, 135 Tenr 156, L. R. A.:917A, 671, 185 S. W. 1075.
1. Co. Litt. 30a; Comer v. Chamberlain, 6 Allen (Mass.) 166; Hunter v. Whitworth, 9 Ala. 965; Heath v. White, 5 Conn. 228; Zeust v. Staffan, 16 App. D. C. 141.
2. 1 Co. Litt. 30a; Phillips v. Ditto, 2 Duv. (Ky.) 549; Donovan v. Griffith, 215 Mo. 149, 20 L. R. A. (N. S.) 825, 128 Am. St. Rep. 458, 15 Ann Cas. 724, 114 S. W. 621; Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; Templeton v. Twitty, 88 Tenn. 595.
As to whether the birth of issue before coverture is sufficient, if such issue is subsequently legitimated by the parents' marriage or during coverture, see editorial notes 24 Harv. Law Rev. at states, the requirement of the birth of issue has been removed by statute.3
Since a woman for whose benefit money is directed to be invested in land is regarded as having an interest in land rather than in money,9 if she dies before the investment is made, her husband surviving is entitled to curtesy.10
When land is sold by order of court, after the owner's death, free of curtesy in favor of her husband, for the purpose of paying decedent's debts, making partition or foreclosing a mortgage, curtesy will be allowed out of the proceeds, or surplus proceeds, of the sale, as representing the land.11