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change can only be made, as we shall see hereafter, of estates that are equal in their nature.”1

III. Tenant by the courtesy of England, is where a man mairies a woman seized of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail; and has by her issue, born alive, which was capable of inheriting her estate. In this case he shall, on the death of his wife, hold the lands for his life, as tenant by the courtesy of England.c

This estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it is said in the Mirrord to have been introduced by King Henry the First; but it appears, also, to have been the established law of Scotland, wherein it was called curialitas,e so that, probably, our word courtesy was understood to signify rather an attendance upon the lord's court or curtis (that is, being his vassal or tenant), than to denote any peculiar favor belonging to this island. And, therefore, it is laid downf that, by having issue, the husband shall be entitled to do homage to the lord for the wife's lands alone; whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of King Henry III. It also appears to have obtained in Normandy; and was likewise used among the ancient Almains or Germans. And yet it is not generally apprehended to have been a consequence of feodal tenure,k though I

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(21) This estate can not by any act of the tenant be enlarged into a fee-simple. (3 & 4 Will. IV., c. 74.)

(22) See a reference to some old instances of courtesy of titles and offices of honor, Co. Litt., 29, a. Mr. Hargrave says, "I can not learn that there have been any claims of dignities by courtesy since Lord Coke's time; and from the want of modern instances of such claims, and from some late creations, by which women have been made peeresses in order that the families of their husbands might have titles, and yet the husbands themselves continue commoners, it seems as if the prevailing notion was against courtesy in titles of honor, However, I have not yet discovered whether this great question has ever formally received the judgment of the House of Lords." There is no courtesy of a copyhold unless by special custom. (Vin. Ab. (E.), pl. 4.) Courtesy of gavelkind lands is of

« Pat. 11 H. III., m. 30, in 2 Bac Abr., 659.

h Grand Coustum., c. 119.

i Lindenbrog., LL. Alman., t. 92. k Wright, 194.

a moiety only, and is forfeited by mar riage. (Rob., Gav., b. 2, c. 1.)

(23) The tenant by the courtesy holds of the superior lord, and not of the heir. (8 Rep., 36, a.) To the above defini tion it must be added, that the wife's seizin must be a sole seizin in possession, and not in remainder or reversion ex pectant on a freehold estate, and that the seizin may be at any time during the coverture. (Co. Litt., 29, a, 183, a.)

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(24) I should rather think with Mr. Wooddeson, that this estate took its name from its peculiarity to England; and that it was afterward introduced into Scotland and Ireland. (2 Woodd., 18.) Tenant by the courtesy of England, perhaps, originally signified nothing more than tenant by the courts of England; as in Latin he is called tenens per legem Anglia. (See Stat. pro. Tenentibus per Legem Angliæ, App. to Ruff., 29.)[CHRISTIAN.]

think some substantial feodal reasons may be given for its introduction. 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.

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2. Seizin of

There are four requisites necessary to make a tenancy by the Four requi courtesy; marriage, seizin" of the wife, issue, and death of the courtesy. wife.m 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. n Co. Litt., 29.

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.

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the law; but it was not necessary in
cases of tenancy by the courtesy, be-
cause no such practice had prevailed.
(And see Lord Talbot's observations in
Att.-Gen. v. Lockley, Sugd: Vend. App.,
No. 19.)

Entry is not always necessary to an
actual seizin or seizin in deed; for, if
the land be in lease for years, courtesy
may be without entry or even receipt of
rent, the possession of the lessee being
the possession of the husband and wife.
(Co. Litt., 29, a; 8 Rep., 96, a; 3 Atk.,
469; infra, p. 209.)

(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 par ties 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, mortgagees, and other persons taking the legal estate, to depart in cases of dower from the general principle of courts of equity, which is, in acting upon trusts, to follow

(27) See 2 Saund., 382, a, b.

ant to a manor, and the wife die before
entry into the manor, the husband shall
not be tenant by the courtesy of the ad-
vowson. (Hal. MSS.)

3. Issue in born alive.

heritable

could never be rightfully seized of the lands, and the husband's title depends entirely upon her seizin, the husband can have no title as tenant by the courtesy.o" 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.us2 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

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W

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. The husband, by the birth of the child, becomes (as Tenant by was before observed) tenant by the courtesy initiate, and may y initiate. 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"

sy

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*

w Co. Litt., 29. * Ibid., 30.

(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.)

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(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 a 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, howev er, 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

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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.

d

c Wright, 192.
Crag., 1. 2, t. 22, § 9.
e Ibid.

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. 8, 742, § 19, 20, 21.)

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