think some substantial feodal reasons may be given for its in-` troduction. For, if a woman seized of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and, as such, is in reason entitled to the profits of the lands in order to maintain it; for which reason the heir appar- [127] ent of a tenant by the courtesy could not be in ward to the lord of the fee, during the life of such tenant. As soon, therefore, as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the courtesy initiate; and this estate, being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant. sites to 2. Seizin of There are four requisites necessary to make a tenancy by the Four requicourtesy; marriage, seizin" of the wife, issue, and death of the courtesy. wife. 1. The marriage must be canonical and legal. 2. The 1. Legal seizin of the wife must be an actual seizin or possession of the marriage. lands; not a bare right to possess, which is a seizin in law, wife. but an actual possession, which is a seizin in deed." And, therefore, a man shall not be tenant by the courtesy of a remainder or reversion." But of some incorporeal hereditaments a man may be tenant by the courtesy, though there have been no actual seizin of the wife; as, in case of an advowson, where the church has not become void in the lifetime of the wife: which a man may hold by the courtesy, because it is impossible ever to have actual seizin of it, and impotentia excusat legem. If the wife be an idiot, the husband shall not be tenant by the courtesy of her lands; for the king, by prerogative, is entitled to them the instant she herself has any title: and since she m Co. Litt., 30. I F. N. B., 143. (25) This should be, sole seizin, for the husband of a joint tenant can not claim courtesy against the survivor. 28 n Co. Litt., 29. the law; but it was not necessary in Entry is not always necessary to an (26) 2 Saund., 45, n. (5). Courts of equity, however, allow courtesy of trusts and of other interests, which, although mere rights in law, are deemed estates in equity. (1 Atk., 603; 1 P. W., 108; 2 Vern., 536; 1 Ves., 174; 2 Jac. & W., 194.) And a mere limitation to the wife's separate use will not exclude the husband's title. (5 Madd., 408.) Lord Redesdale, in 2 Sch. & Lef., 388, suggests as a reason for the distinction between dower and this claim, that parties had been acting on this supposition, that the creation of trust estates would. (28) This is only true of an advowson bar dower; and that it was necessary in gross; for if an advowson be appendfor the security of purchasers, mortga- ant to a manor, and the wife die before gees, and other persons taking the legal entry into the manor, the husband shall estate, to depart in cases of dower from not be tenant by the courtesy of the adthe general principle of courts of equity, vowson. (Hal. MSS.) which is, in acting upon trusts, to follow (27) See 2 Saund., 382, a, b. beritable born alive. could never be rightfully seized of the lands, and the husband's title depends entirely upon her seizin, the husband can have no 3. Issue in- title as tenant by the courtesy.00 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying, indeed, is the strongest evidence of its being born alive; but it is not the only evidence. The issue, also, must be born during the life of the mother; for if the mother dies in labor, and the Cæsarean operation is performed, the husband, in this case, shall not be tenant by the [128] courtesy; because, at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child, while he was yet in his mother's womb; and the estate being once so vested, shall not afterward be taken from him.q" In gavelkind lands, a husband may be tenant by the courtesy without having any issue." But, in general, there must be issue born; and such issue as is, also, capable of inheriting the mother's estate. Therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the courtesy; because such issue female can never inherit the estate in tail male.t And this seems to be the principal reason why the husband can not be tenant by the courtesy of any lands of which the wife was not actually seized, because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife; but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seized; and, therefore, as the husband hath never begotten any issue that can be heir to those lands, he shall not be tenant of them by the courtesy.u" And hence we may observe, with how much nicety and consideration the old rules of law were framed; and how closely they were connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture; for, whether it were born before or after the wife's seizin of the lands, wheth the courte er it be living or dead at the time of the seizin, or at the time of the wife's decease, the husband shall be tenant by the courtesy.w The husband, by the birth of the child, becomes (as Tenant by was before observed) tenant by the courtesy initiate, and may do many acts to charge the lands, but his estate is not consummate till the death of the wife; which is the fourth and last 4th. Death requisite to make a complete tenant by the courtesy.y 33 of wife. in dower. IV. Tenant in dower is where the husband of a woman is [129] seized of an estate of inheritance, and dies; in this case, the IV. Estate wife shall have the third" part of all the lands and tenements whereof he was seized at any time during the coverture, to hold to herself for the term of her natural life.z* Co. Litt., 29. (33) If the child which the husband has by his wife be capable, and have a mere possibility of inheriting, the husband shall be tenant by the courtesy. Thus, if a woman seized in fee of lands marry and have a son, after which the husband dies, and she marries again, and has a child by the second husband, here the husband shall be tenant by the courtesy, although there is but a mere possibility that the child which the wife had by her second husband should ever inherit the estate, the child by her first husband being alive. (Prest. Est., 516.) -[CHITTY.] If a man take a wife seized of lands in fee, and have issue, and afterward the wife is attainted of felony, so that the issue can not inherit to her, yet he shall be tenant by the courtesy, in respect of the issue which he had before the felony, and which by possibility might then have inherited. But if the attainder had preceded the birth of issue, it had been otherwise. (Co. Litt., 40, a. See 2 Sim., 249.) The courtesy is a continuation of the wife's estate of freehold, and though the inheritance of the wife ceases on her death by virtue of a condition in the limitation, the husband shall have his courtesy if his title was initiate in the wife's lifetime. (10 J. B. Moore, 235, n.; 2 Sim., 249.) y Ibid. 2 Litt., § 36. (34) The banishment of the husband by abjuration, or by act of Parliament, being a civil death, was held to entitle the wife to her dower immediately; but if man became civilly dead by profession, it gave her no avail, without whose consent he could not have entered into religion, and, therefore, his wife, after such civil death, was not dowable until his natural death. (Co. Litt., 132, b.) (35) But of gavelkind lands, a woman is endowed of a moiety while she remains chaste and unmarried. (Co. Litt., 33, b; Rob., Gavelk., 159.) And the widow is entitled for her dower to the whole of her husband's lands held by the tenure of Borough English. But of copyhold lands a woman is endowed (if at all) only of such lands whereof her husband was seized at the time of his death. (2 Atk., 525; 2 Ves. Sen., 633; Cowp., 481.) And her title to dower or free-bench is governed by the custom; according to its authority, she may take a moiety, or three parts, or the whole, or even less than a third, but it must be found precisely as it is pleaded. (Cro. Eliz., 15; 1 Gale & Dav., 180; 1 Q. B. Rep., 682.) A custom entitling widows of tenants in fee-simple to freebench, implies that the widows of tenants in tail shall have the same right. (3 Dougl., 303.) In New York, it is enacted by statute, that "a widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage."—(1 R. S., 740, § 1.) If, however, permanent improvements have been made upon the lands in which dower is claimed since the alienation thereof by the husband, if they have been aliened, or since his death, the widow reaps no benefit from such improvements, but is endowed of only so much land as is equal to the value of one third of the land in which dower is demanded, exclusive of such improvements.-(2 R. S., 490, 13.) To this restriction the courts have added another, viz., that the widow VOL. II.-K 145 Its origin. Dower is called, in Latin, by the foreign jurists doarium, but by Bracton and our English writers dos; which, among the Romans, signified the marriage portion which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance; nor, indeed, is there any thing, in general, more different than the regulation of landed property according to the English and Roman laws. Dower out of lands seems, also, to have been unknown in the early part of our Saxon constitution; for, in the laws of King Edmund,a the wife is directed to be supported wholly out of the personal estate. Afterward, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands, with a proviso that she remained chaste and unmarried; as is usual, also, in copyhold dowers, or free-bench. Yet some have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we can not expect any feudal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens tertiad and dotalitium) by the Emperor Frederic the Second,e who was cotemporary with our King Henry III. It is possible, a Wilk., 75. b Somner., Gavelk., 51. Co. Litt., 33. Bro., Dower, 70. c Wright, 192. shall not be permitted to participate in the benefit of the enhanced value of the land arising from the increase of population, and the general cultivation and improvement of the country in the vicinity, since the sale by her husband, or since his death; but must content herself with only so much of the lands in which dower is claimed as is equal in value to one third of the value of the whole at the time of the alienation thereof, or at the time of the death of the husband.Dorchester v. Coventry, 11 Johns. R., 510; Shaw v. White, 13 Id., 179; Walker v. Schuyler, 10 Wendell, 480.) With great deference it is submitted, that the three cases just referred to can not be supported upon principle, and are not warranted by the statute denying to the widow the benefit of improvements, upon which they profess to be founded; nor are they supported by the ancient English authorities cited by the judges, which refer solely to improvements made subsequent to the alienation by the husband. In Gore v. Brazier, 3 Mass. R., 544, Ch. Justice Parsons was inclined to the opinion that the widow ought to be allowed for the increased value arising from extrinsic causes; and so it was held in Pennsylvania, in Thompson v. Merron, 5 Serg. & Rawle, 289, although it was said that the widow could not take or claim any benefit from improvements made by the purchaser: which doctrine was declared by Mr. Justice Story, 3 Mason's R., 375, to stand upon solid principles and the general analogies of the law. Chancellor Kent, also, concedes the better and more reasonable American doctrine to be, that the improved value of the land, for which the widow is to be excluded in the assignment of her dower as against a purchaser from her husband, is that which has arisen from the labor and money of the owner, and not from that which has arisen from extrinsic or general causes.- -(4 Kent's Comm., 68.) The widow is also entitled to recover as damages, for the withholding of her dower, one third of the annual value of the mesne profits of the land from the time of her husband's death, in an action against his heirs, and from the time of demanding her dower in actions against other persons; but in no case can she recover for more than six years' profits, nor are such damages estimated for the use of permanent improvements made after the death of the husband.-(1 R. S., 742, § 19, 20, 21.) therefore, that it might be with us the relic of a Danish custom; since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by [130] the Vandals. However this be, the reason which our law gives for adopting it is a very plain and sensible one; for the sustenance of the wife, and the nurture and education of the younger children.g In treating of this estate, let us, first, consider who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and, fourthly, how dower may be barred or prevented. be endow lost. 1. Who may be endowed. She must be the actual wife of 1. Who may the party at the time of his decease. If she be divorced a ed. vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos.h* But a divorce a mensa et thoro Dower, how only doth not destroy the dower;i no, not even for adultery itself by the common law. Yet now, by the statute Westm. 2, if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her." It was formerly held that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the courtesy ;m but, as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot can not marry, being incapable of consenting to any contract, this doctrine can not now take place." By the ancient law the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde," that, if the love of a man's own life can not restrain him from such atrocious acts, the love of his wife and children may; though Brittono gives it another turn, viz., that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. VI., c. 12, abated |
