holds she was either legally or equitably possessed of at the time of marriage, is entitled to an estate for life in the same (i). It is a question of doubt whether the seisin of the wife, at the time of marriage, is an indispensable requisite to curtesy in those cases where the custom of a manor may allow the interest to attach only to marriages of CoPYHOLDERS (k): So that the husband of a lady who after the nuptials might by any event become a COPYHOLDER, would by such a deferred fortune be barred his curtesy. This is a nice distinction, and may be tolerable by the existence of insuperable custom, though it might become matter for litigation, if viewed in the light of reason and policy (7). So far as dying seised is an essential, no husband can be prejudiced, since a married lady can in no case [unless by special power of appointment] dispose of her realty without the assent of her husband; this veto might be thought highly favourable to married men, when compared with their optional control in dower and freebench, but is of little real import, since so many stringently provident provisions are at command in settlements and wills, and which seldom escape the knowledge of either the heiress or her venerable donor. There is still another undecided point in curtesy which materially affects this estate, and that is where custom does not in distinct terms limit its enjoyment to cases where issue have been born, that connubial sterility will by virtue of the nuptials alone entail curtesy (m); this, however, is in opposition to the basis of the common law estate, namely, its necessity for the nurture of issue, and such a rule certainly appears quite as inconsistent as the restriction of the same interest to marriages of copyholders only in a converse sense.

A more extended question may be mentioned in connection with curtesy as necessarily involved by the late law of inhe

(i) Sweetapple v. Bindon, 2 Vern. 536. Cunningham v. Moody, 1 Ves. Sen. 176.

(k) Scriven, 4th edit., vol. 1,

p. 79, n. (ƒ) and (g).

(1) 2 Hen. 4, 10; Co. Cop. s. 33; Tr. 61, 62, 63 ; Kit. 204.

(m) Watkins, vol. 2, p. 93.

ritance (n), and that is, whether such estate is not wholly abrogated in cases of descent? As an essential to curtesy, the issue must have been capable of being heir to the wife, according to the legal character of her seisin, and such seisin by the maxim of "seisina facit stipitem," must have been actual, if not so, the issue could not have inherited as her heir (o), and consequently the husband forfeited his curtesy. By a parity of reasoning, it would appear that since by the recent act (p), descent must be traced from the last purchaser, and not from the person last seised, the issue would have to claim the estate of inheritance as heirs to the purchaser and not the wife, and thus annul the claim of curtesy. The foregoing remarks upon freebench and curtesy are sufficient, as guiding to a general view of those estates; for a more elaborate dissertation-reference to other authorities may be had, as previously suggested. Presuming the estates of freebench and curtesy to have attached, we have now to inquire the modes of vesting. Freebench, unless it be of the inheritance, is the subject of admittance, as being generally a portion carved out of, and not a continuation of the whole original estate; curtesy is not the subject of admittance for a like reason as being a continuation of the deceased wife's interest, except, however, in such manors as custom limits this estate to a portion of the inheritance, in such cases admittance will be necessary (q). The necessity of admittances, nevertheless is qualified, and even dispensed with by custom in many manors, as in the manor of Clitheroe, in Lancashire, where the heir is always admitted to the copyholds of his ancestor, subject to the freebench of the widow obviating the necessity of her admittance; so likewise is the tenant by curtesy exempted from

(n) 3 & 4 Wm. 4, c. 106.

(0) Watkin's Des. 38, 4th edit.; 1 Rop. Husb. & Wife, 7.

(p) Vide n. (n), supra.

(g) 1 Watkin's Cop., 334, 363 ; Scriven, 4th edit., vol. 1, p. 298.

admittance, as being seised in right of his deceased wife. Subjoined are a few precedents adapted, where custom requires, to the circumstances of each particular case.

No. 14.

INQUISITION presenting that the heir-at-law and customary heir of a copyholder deceased intestate, is entitled to be admitted tenant, subject to the freebench of the widow according to the custom of the manor.

day of

day of

THE JURORS aforesaid upon their oath aforesaid, do find and present that [deceased] of [locality], under and by virtue of a certain surrender or memorandum thereof in writing, duly passed and executed by [last surrenderor] therein described, dated the A. D. 18-, and of an admittance thereupon of the became fined and seised to him and his heirs, according to the custom of the said manor, OF AND IN ALL [parcels and general words] which said premises were of the yearly rent to the lord of the said manor of [fine]. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present that the said [deceased] continued to be so fined and seised to the time of his death, AND that he died on the intestate as to the said premises, leaving [name] his wife, and [name] his eldest son and heir-at-law, both him surviving. AND that the said [heir] is now of full age, and is entitled to be admitted tenant according to the custom of the said manor, subject to the customary dower or freebench of the said [widow], the widow of the said [intestate] deceased, and to which she hath at

day of

this Court been admitted (q), that is to say, To Two equal undivided third parts, and the remainder or reversion expectant on the decease of the said [widow], of and in the other or remaining undivided third part of the said hereditaments and premises hereinbefore described.

No. 15.

INQUISITION presenting that the sole devisee of a copyholder deceased (who had made no provision in his will for his widow in lieu of freebench), is entitled, subject to such freebench, to be admitted tenant according to the custom of the said manor.

THE JURORS aforesaid, upon their oath aforesaid, do find and present that [testator] of [residence, &c.], under and by virtue of a surrender or memorandum thereof in writing, and of an admittance thereupon on the day of A. D. 18—, became fined and seised to him and his heirs, according to the custom of the said manor, oF AND IN ALL parcels and appurtenances], TOGETHER with [general words], and of the yearly rent to the said lord of the manor of [fine]. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present that the said [testator] continued so fined and seised until the time of his death; AND that being so fined and seised, he made and executed his last will and testament according to the law now in force with respect to wills; and that he appointed [name] of [residence, &c.], executor of, and made him sole devisee in the said will (r), without making provision

(9) Omit the words in italics; if widow is not admitted.

(r) Where a widow has refused

D

the provision in lieu of dower, and been put to election. Vide No. 17.

day of

for satisfaction, or in lieu of the customary dower or freebench of [wife's name], his widow. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present that the said [testator] died on the A. D. 18—, without having altered or revoked his said will, leaving the said [wife] and [devisee] him surviving. AND THE JURORS aforesaid, upon their oath aforesaid, do further find and present that by virtue of the said will and by operation of an act of Parliament made and passed in the first year of the reign of her present Majesty Queen Victoria, intituled "An Act for the Amendment of the Laws with respect to Wills;" the said [name], as such devisee as aforesaid, is entitled to be admitted tenant according to the custom of the said manor, subject to the customary dower or freebench of the said [wife], widow of the said [testator] deceased, and to which she hath at this Court been admitted (s); that is to say, to two equal undivided third parts, and the remainder or reversion expectant on the decease of the said [widow], of and in the other or remaining undivided third part of the hereditaments and premises hereinbefore described.

No. 16.

INQUISITION presenting that the widow of a deceased copyholder, intestate, is entitled to be admitted to her freebench, where a portion of the copyholds hath been assigned by the heir.

THE JURORS aforesaid, upon their oath aforesaid, do find and present that [name of widow] of [residence], widow

(s) Vide supra, p. 33, n. (r).