A. Common Law. - This still applies (1) if the marriage took place before 1883 and the property was acquired before that date; or, (2) if the wife dies intestate.

(1) Heal Property.

Estate by the Curtesy.

The husband took an estate for life in the whole of his wife's lands after her death, provided

(i.) She was solely seised of an estate of inheritance.

" Solely," i.e. not jointly.

If land was conveyed to the wife and another as joint tenants, then, on her death, the land went to the other by survivorship.

"Estate of Inheritance."

The land must have been held by her in fee simple or in tail, for, if she held for life only, her interest ceased on death.

(ii.) Issue of the marriage capable of inheriting must be born alive.

"Capable of inheriting."

If land was conveyed to " Alice and the heirs of her body by her husband John," then, if John survived Alice, he would get curtesy if he had had any child by her, for such child could have inherited under the entail. But if John died and Alice married William, William would not have curtesy on her death, for his children could not inherit under the entail.

"Bom alive."

The child must be born alive; the test was whether it cried out. If any child was born sufficiently alive to cry out, then the father took curtesy, even though the child died at once.

(iii.) The wife must be seised in deed.

That is, she must have actually entered into possession of the land. It was in the husband's power to enter in her name, and therefore it was his fault if he did not enter.

If entry by the husband was impossible, it was not absolutely necessary. See Eager v. Furnival, on p. 102, ante, note (l).

The estate of the husband is called "an Estate by the Curtesy of England," and the husband is called "tenant by the Curtesy."

The derivation is probably from the root "cur" in "curia" and "court," and has no connection with "courtesy."

Curtesy in Gavelkind land is one half, and there is no necessity for birth of issue (see p. 16).

2. Personal Property (including Chattels Real.)

Vested absolutely in the husband "jure mariti" (= "by virtue of his rights as husband.")

B. Equity.

Equity followed the law in this case and gave the husband curtesy over his wife's equitable estates: but if trustees held the land for the separate use of the wife, she could dispose of them by will, and might thus deprive the husband of curtesy.

C. Statute. Since the Married Women's Property Act, 1882, a married woman to whom the act applies (see p. 124) can dispose of her land by will: but if she dies intestate, even if married after 1883, the husband still takes an estate by the curtesy.

Hope v. Hope, [1892] 2 Ch. 336.

Mrs. H. was married before 1882. She acquired certain land under the will of her father, who died in 1891. Therefore the Act of 1882 applied to this land. She died intestate, leaving a son and her husband.

Held, the husband was entitled to an estate for life in the land. For the Act only refers to "acquiring, holding, and disposing of" property, and does not refer to devolution on intestacy.

A husband, who is tenant by the curtesy, has the powers of a tenant for life under the Settled Land Act (s. 58 (1) viii.).

A married woman can also dispose of her personal property (including leaseholds) by will, but if she does not do so, it vests in her husband.

The legal ownership probably does not now vest in him until he is appointed administrator to his wife, but his equitable right to the property vests in him jure mariti and is not dependent on his becoming administrator (h).