CHAP. VII.

2 Bl.Com. 126.

and Co. Litt.

29 a. to 30 b.

4 Comyn's Dig.

38. 7 Vin. Ab.

OF AN ESTATE BY THE CURTESY.

AN estate by the curtesy, like that in dower, Litt. b. 1. c. 4. arises by act of law, and is an estate of freehold ; and consequently, as it may be conveyed to a 148. 2 Bac. Ab. stranger for the life of the tenant by the curtesy, 218. 1 Cruise's it must be conveyed by those means which the law appropriates for the transfer of freeholds, as by livery, or under the statute of uses.

Dig. 4th ed.

139.

Morgan v.
Morgan,

5 Madd. 408.

It may also be surrendered to the heir or reversioner.

As an husband shall have his curtesy of a trust, the same modes of prevention do not exist, as exist with respect to dower. But as he shall not have his curtesy of a remainder or reversion on a freehold, nor of a freehold in possession, that is not also of inheritance, the estate by curtesy may be prevented by placing either the freehold in Doe v. Rivers, possession, or an intermediate estate of freehold, or the inheritance, out of the wife.*

7 T. R. 276.

Litt. s. 35.

* To give title to tenancy by the curtesy, the wife must be scised in fee simple, or fee tail, and issue must be born alive,

Richardson, 3 Atk. 469.

Co. Litt. 30., which might by possibility have inherited, Co. Litt. 29 b.; and there must be an actual seisin in deed, a seisin in law not being sufficient, Co. Litt. 29 a. But it is immaterial at what time the issue is born, whether before or after the lands vest in the wife, or whether the issue be then alive or dead, Co. Litt. 30 a.; and the possession of a tenant De Grey v. for years will be the possession of the wife, so as to give a title to the curtesy before receipt of rent. Of an advowson, or rent, of which actual seisin cannot be obtained, there will be curtesy, although the wife die before avoidance or receipt, Co. Litt. 29 a. By custom of gavelkind, the husband, if he survives his wife, is entitled to a moiety, whether he has issue or not, so long as he remains unmarried. Tenant by curtesy is subject to action for waste, and to forfeiture; and his concurrence, if seised of the freehold in possession, was requisite in making a tenant to the præcipe, as before remarked in the case of dower.

Robinson's Ga

velkind, 136.

[In Barker v. Barker, the devise was to A. and her heirs; 2 Sim. 249. but if she died leaving issue, then to such issue, and their heirs. A. died leaving issue: and it was held that the husband of A. was not entitled to curtesy, as the children took by purchase, and the wife had not such an estate as could descend upon them.]

TENANT IN TAIL AFTER POSSIBILITY
OF ISSUE EXTINCT.

Litt. c. 3. s. 32. -34. 2 Bl. Comm. 124.

4 Comyn's Dig. 38. 20 Vin. Ab. 171. 2 Bac. Ab. 554. 1 Cruise's Dig. 4th ed. 134.

Mr. Watkins seems to have omitted all mention of this estate. It arises when lands are limited in special tail, and one of the parties from whom the issue are to proceed dies without issue; as if lands are limited to a man and woman, and the heirs of their two bodies, and one of them dies without issue, the survivor is tenant in tail after possibility of Litt. 8. 32 and issue extinct: so if lands are limited to a man, and the heirs 33. of his body by his then wife, and she die without issue, the husband is tenant in tail after possibility of issue extinct; and this estate may exist in remainder; and it will arise if there be issue born, and the issue die without issue. The estate must be created by the act of God, and not by limitation of the party. And so, if lands are given to a man and his wife, and the heirs of their two bodies, and afterwards they are divorced, causá consanguinitatis, or affinitatis, their estate of inheritance is turned to a joint estate for life but

Lewis Bowles's case, 11 Co. 84.

Litt. 8. 32.

Co. Litt. 28 a.

because their estate is altered by their own act, and not by Co. Litt. ibid. the act of God, they are not tenants in tail after possibility of issue extinct, but merely tenants for life. So far as respects alienation, this tenant is reduced to an estate for life; for he has no power of barring the remainders or reversion on his estate. But he has several privileges which a mere tenant for life has not, the principal of which is, that he is dispunishable for waste but, nevertheless, it is said in Herlakenden's case, 4 Co. 63., that if he fell the trees the lessor shall have them, for he has not an absolute interest in them. There seems to be no decision to support this doctrine; and it is difficult to conceive it to be law, or to understand why this tenant is to be in a worse situation than tenant for life, without impeach

ment of waste, when the law professes to consider his interest as better than that of tenant for life; and it is denied to be law by Lord Coke, in 1 Roll. Rep. 184.

Co. Litt. 28 a.

The privileges of this tenant are enjoyed in respect of the privity of estate and inheritance once in him; and, therefore, if he assign his estate to another, the privity is gone, and his grantee will be mere tenant pour autre vie, and it should seem be punishable for waste. Lord Coke mentions four qualities of this estate, in which it is similar to that of mere tenant for Ibid. life-1st, It is liable to forfeiture; 2dly, It will merge in an estate in fee or in tail; 3dly, He in reversion or in remainder shall be received upon his default; and, 4thly, An exchange between him and mere tenant for life is good.

CHAP. VIII.

2 Bl. Comm.

110. Litt. b. 1. c. 2. Wright's Ten. 185.

Sulliv. Lect. 121.

Wath. No. lxxix. to Gilb.

Ten. 418. and 1 Wath. Cop. ch. 4. p. 147. 4 Com. Dig. 6.

10 Vin. Ab. 245. and 20 IП.

163. 2 Bac. Ab. 538.

1 Cruise's Dig. 4th ed. 66.

OF AN ESTATE TAIL.

WHEN an estate is limited to a person and his descendants, it is called an estate tail, as to a man or woman, or to a man and woman*, and the heirst of his, her, or their body or bodies.

If it be to a man or woman, and the heirs of his or her body, it is an estate in tail general, as heir of his or her body may inherit: but if any it be to Thomas and the heirs of his body by his wife Jane, or to Jane and the heirs of her body by her husband Thomas, or to Thomas and Jane

By this is to be understood a man and woman between whom in contemplation of law issue may be had; for if an estate be limited to a brother and sister, (for example), and the heirs of their bodies, this will give them a joint estate for life, with several inheritances in tail as tenants in common. Fearne's Cont. Rem. 8th ed. 36, 37.

† [In a deed technical words of limitation are indispensable, though not so in a will; thus a limitation in a deed to A. and his issue, only gives a life estate to A.; while a devise in similar words would confer an estate tail, Co. Litt. 20. b. Wheeler v. Duke, 1 Crom. & Mee. 210.]