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 .
A conveyance by the wife before marriage will defeat the estate of curtesy, since one of the essentials-seisin or title during coverture-is then wanting; but this is not so if the conveyance can be regarded as fraudulently made for the purpose of depriving the husband of curtesy, and in such a case he is entitled to curtesy as if the conveyance had not been made.27 In determining whether the conveyance is so fraudulently made, the same considerations appear to be applicable as in determining the validity of a conveyance by an intending husband as against the claim of dower.28
The wife ordinarily cannot, by her sole conveyance during coverture, affect the right of her husband to
Grey v. Richardson, 3 Atk. 469; Powell v. Gossom, 18 B. Mon. (Ky.) 179; Malone v. McLaurin, 40 Miss. 161, 90 Am. Dec. 320; Tayloe v. Gould, 10 Barb. (N. Y.) 388; Jackson v. Johnson, 5 Cow. (N. Y.) 74, 5 Am. Dec. 433; Carter v. Williams, 43 N. C. 177; Lowry's Lessee v. Steele, 4 Ohio, 170.
25. 2 Cruise, Dig. tit. 19, Sec. 10; Id. tit. 20,Sec. 21; Sterling v. Penlington, 14 Vin. Abr. 512; Wass v. Bucknam, 38 Me. 356; Carr v. Givens, 9 Bush. (Ky.) 679, 15 Am. Rep. 747.
The wife's agreement not to partition has been held to be binding on the husband's curtesy. Mathews v. Glockel, 82 Neb. 207, 18 L. P. A. (N. S.) 1208, 117
N. W. 404
26. Co. Litt. 183a; 2 Cruise, Dig. tit. 18, c. 1, Sec. 51; Carr v. Givens, 9 Bush (Ky.) 679, 15 Am. Rep. 747.
27. Strathmore v. Bowes, 1 Ves. Jr. 22; England v. Downs, 2 Beav. 522; Freeman v. Hartman, 45 111. 57, 92 Am. Dec. 193; Logan v. Simmons, 38 N. C. 487; Tucker v. Andrews, 13 Me. 125; Robinson v. Buck, 71 Pa. St. 386. If a conveyance made by the woman before marriage is set aside, her husband has curtesy as if it had not been made. Gilmore v. Burch, 7 Ore. 374.
28. See Dunbar v. Dunbar, 254 111. 281, 98 N. E. 563, and ante Sec. 220 (a).
- Devise by wife. A statute enabling a married woman to dispose of her land by will has in some states been regarded as enabling her to defeat curtesy by a devise of the land,33 while in other states a statute of the same general character has been differently construed.34 A statute giving curtesy in land of which the wife is seised at the time of her death has been regarded as enabling her to bar curtesy by will.35 In some states, the statute gives power to the wife to bar curtesy by devise with the husband's written consent.36 Apart from statute, however, she cannot bar curtesy by a devise, even though it is made with her husband's assent.37
29. Huston v. Seeley, 27 Iowa, 183; Clay v. Mayr, 144 Mo. 376, 46 S. W. 157; Den d. Camp v.
Qumby, 3 N. J. Law 540; Johnson v. Fritz, 44 Pa. St. 449.
30. Neely v. Lancaster, 47 Ark. 175, 58 Am. Rep. 752, 1 S. W. 66; Porch v. Fries, 18 N. J. Eq. 204; Hatfield v. Sneden, 54 N. Y. 280; Burke v. Valentine, 52 Barb. (N. Y.) 412; Leggett v. McClelland, 39 Ohio St. 624; Johnson v. Simpson. 40 Okla. 413, 139 Pac. 129; Warren .-. Werner, 14 Wis. 360.
31. Stewart v. Ross, 50 Miss. 776.
32. Cooper v. McDonald, 7 Ch. Div. 300.
33. Neely v. Lancaster 47 Ark. 175, 1 S. W. 66, 58 Am. Rep. 752; Zeust v. Staffan. 16 App. D. C. 141; effect in the instrument creating a sole and separate use in favor of the wife;43 but even in the case of property so limited, curtesy will, in theory at least, be excluded only when an intent to that effect is clearly expressed,44 except, in one state at least, when the husband thus settles land on his wife, an intention to exclude curtesy being presumed in such case.45 The decisions are not entirely consistent as regards the sufficiency of language to express an intention to exclude curtesy, and occasionally, perhaps, the courts have not closely adhered to the requirement that such intention be clearly expressed.46
Balster v. Cadicik, 29 App. D. C.
405; Shannon v. Watt, 87 N. J. Eq. 611, 101 Atl. 251; Ransom v. Nichols, 22 N. Y. 110. In re Star-buck's Estate, 137 App. Div. 866, 122 N. Y. Supp. 584, 201 N. Y. 531, 94 N. E. 1098; Tiddy v. Graves, 126 N. C. 620, 36 S. E. 127. Breeding v. Davis, 77 Va. 639, 46 Am Rep. 740; Warren v. Werner, 14 Wis. 360. So when the wife conveyed under judicial authority conferred on her, by force of statute, to act as feme sole. Garner v. Wills, 92 Ky. 386, 17 S. W. 1023.
34. Soltan v. Soltan, 93 Mo. 307. 6 S. W. 95; Clarke's appeal, 79 Pa. St. 376; Cooke's Appeal 132 Pa. 533, 19 Atl. 274; Alderson's Adm'r v. Alderson, 46 W. Va. 242, 33 S. E. 228.
35. Stewart v. Ross, 50 Miss. 776.
In the case of land settled on the wife for her sole and separate use, if there is a power expressly given her to dispose of the property by will, she may, by so disposing of it, bar her husband's curtesy.38 And in jurisdictions where, as in England, she has such a power of disposition unless a contrary intention appears,39 she may thus bar dower without any express gift of the power.40
- Provision excluding curtesy. At law, the right of the husband to curtesy is regarded, like dower, as a necessary incident to an estate of inheritance, and consequently not subject to be defeated by any provision excluding curtesy, inserted in the gift on conveyance of the land to the wife.41 The same rule should, on principle, apparently, apply in courts of equity, "as there appears no reason why a person should be able to exempt equitable, any more than legal, estates from the ordinary incidents of property."42 It has, however, in numerous cases, been considered that curtesy may be excluded by express provisions to that
36. Stimson's Am. St. Law, Sec. G4G0. See Silby v. Bullock, 10 Allen (Mass.) 94.
37. Middleton v. Steward, 47 N. J. Eq. 293, 20 Atl. 846; But see McBride's Estate, 81 Pa. 303.
38. Pool v. Blakie, 53 111. 495; Morgan v. Morgan. 4 Gill & J. (Md.) 395; Hutchings v. Commercial Bank of Danville, 91 Va. 68, 20 S. E. 950.
39. Ante Sec. 206.
40. Cooper v. McDonald, 7 Ch. Div. 288; Zeust v. Staffan, 14 App.