meerly out of that of the Wife, but is a Benefit of Law tacitly annexed to the Gift. So if a Man be seised in Fee-fimple of a Rent, and makes a Gift in Tail general to a Woman, who marries, and hath Issue, which dies, then the Wife dies without Issue, the Husband shall be Tenant by the Curtesy of the Rent, because the Rent remaineth: But where a Gift in Tail is first made, reserving Rent to a Woman and her Heirs; and the Wife dies without leaving Issue, her Husband shall not be Tenant by the Curtesy of this Rent; for the Rent being newly reserved, is by the Act of God determin'd, and no Estate thereof remains. If an Estate of Freehold in Rents, Commons, or such like be suspended, a Man shall not be Tenant by the Curtefy; but if the Suspension be but for Years, he shall. 1 Inst. 30. 8 Rep. 36. Plowd. 155. A Feoffment was made to the Use of a Woman in Tail, upon Condition of Paying a certain Sum of Money to another, within a Time limited, and on Default of Payment of the said Sum, then to fuch other Person in Tail, &c. In this Case it was adjudged, that by the Non-payment of the Money the Estate-tail was determined, and where ever fuch an Estate is determin'd, and not defeated, the Husband is Tenant by the Curtesy. In a Case where a Rent-charge was granted to a Feme Sole in Fee, to be paid after the Death of another Person, and she married and had Issue; the Court inclined, that the Husband was Tenant by the Curtesy, because tho' the Rent was payable in futuro, yet it was assignable, and might be granted over, which proves that it was in effe. I And. 184. I Leon. 167. 2 Sid. 110, 117. The Issue, which shall intitle a Man to be Tenant by the Curtesy, must be born in the Life of the Wife, and born alive, which may be proved by Motion, Stirring, &c. And being born alive, 'tis sufficient, without crying; for perhaps it may be born Dumb, and if the Issue is deaf, or dumb, or both, or be an Ideot, and is not a Monster, it is lawful Issue to make the Husband Tenant by the Curtesy, and to inherit the Land. If a Child is born alive, it is not material whether it is baprised, or ever heard to cry, to make the Husband Tenant by the Curtesy: But if the Child is ripp'd out of the Mother's Body after her Death, tho' it be alive, it will not intitle Tenancy by the Curtefy; for this ought to begin by the Issue, and be confummate by the Death of the Wife, and the Estate of Tenant by the Curtesy should avoid the immediate Discent. And as the Child must be such as by Possibility may inherit; therefore if Land be given to a Woman and the Heirs Male of her Body, and she takes Husband, and hath Issue a Daughter, and dies; this Issue cannot poffibly inherit, so that the Husband shall not be Tenant by the Curtesy. 1 Inst. 29. Terms de Ley 206. 1 Nelf. Abr. 578. It is not requisite that the Issue be born and alive when the Land descends or comes to the Woman: For if a Man marries a Woman seised of Lands in Fee, and is disseised of the Lands, and then hath Ifssue, and the Wife dies, he shall enter and hold by the Curtesy: So if he hath Iffue, which die before the Lands descend to the Wife. And altho' the Estate of Tenant by the Curtesy be not confummate till the Wife's Death, yet it hath such a Beginning after Issue had in the Life of the Wife as is respected in Law: For if he make a Feoffment in Fee, and the Wife dieth, the Feoffee shall hold during his Life; and such Feoffment cannot be a Forfeiture, because the Feoffor had an Estate Estate of Tenant by the Curtesy initiate, and was seised of the Inheritance. I Inft. 29, 30. But if a Man intitled to be Tenant by the Curtesy, makes a Feoffment in Fee upon Condition, and he enters for Breach of the Condition, and then his Wife dies, he shall not in this Case be Tenant by the Curtesy; because his Tenancy by the Curtesy was extinct by the Feoffment; as when the Lord disseises his Tenant, and makes such a Feoffment, this is a Release in Law, and shall extinguish the Seigniory as much as a Release in Deed, and the Re-entry shall not revive it, for the Condition is annexed to the Feoffment, and not to the Release. And where a Man seised of Land in the Right of his Wife, maketh a Feoffment in Fee, and the Estate is then made back to the Wife; she is thereby remitted, and yet he shall never be Tenant by the Curtesy of the Land. Ibid. Hob. 338. If a Woman takes Husband, and hath Issue, and Lands descend to the Wife, the Husband enters, and after the Wife is found an Ideot by Office, the Lands shall be seised by the King; for the Title of the Tenancy by the Curtesy and of the King begin at one Instant, and therefore the Title of the King shall be preferred: But this is made a Question by fome Authors, because the Fee and Freehold were in the Wife, and the Wife of an Ideot shall have Dower; therefore after the Wife's Death, the Husband should be Tenant by the Curtesy. 1 Inst. 30. Hawkins's Abr. 43. A Man marries a Woman seised of Lands in Fee, and hath Issue, and after the Wife is attainted of Felony, so that the Issue cannot inherit to her, yet he shall be Tenant by the Curtesy, in regard to the Issue which he had before the Felony, and which by Poffibility might then have inherited: But But if the Wife had been attainted of Felony, before the Issue had, altho' he hath Issue afterwards, he shall not be Tenant by the Curtesy in such Cafe. I Inft. 40. It has been held, that a Tenant by the Curtesy cannot claim by a Devise, and wave his Estate of Tenancy by the Curtesy; because, as 'tis held, the Freehold commenced in him, before the Devise for Term of his Life. A Man, being seised in Fee of a House in London, devised it by Will to A. his Coufin, a Widow, and after her Decease to R. S. her Son and Heir apparent, and died; A. married a second Husband, and had Issue by him, and afterwards she died; it was adjudged, that her Hufband could not be Tenant by the Curtesy, because his Wife was only Tenant for Life. Dyer 357. A Person devised Lands to his Sister for her Life, and if she married and had Issue Male of her Body living at the Time of her Death, then to such Issue Male and his Heirs for ever; but if she died leaving no Issue Male, then the same to remain over to another: She married, and had Issue a Son, who afterwards died, and then she died; but it was decreed the Husband should not be Tenant by the Curtesy, for the Inheritance was never vested in the Wife during her Life, and her Estate being only to fupport the contingent Estate-tail to her Issue, &c. 2 Mod. Caf. L. and E. 147, 150. By the two last mentioned Cases it appears, how Tenancy by the Curtesy may be prevented, by creating an Estate for Life in the Wife; and as the like Estate in a Husband prevents Dower, so does the making a Jointenancy in the Lands, &c. Of |