Curtesy of England [jus curialitatis Angli', Lat.], an estate which by favour of the law of England arises by act of law, and is that interest which a husband has for his life in his wife's fee-simple or fee-tail estates, generalor special, aftr her death.
Tenancy by the curtesy has been abolished by the (English) A.E. Act, 1925, s. 45, with regard to the inheritance of every person dying after 1925, but undr s. 130, (English) L.P. Act, 1925, curtesy will arise as an equitable interest in any property realor personal as an incident to an equitable intrest in-tail and in default of a disentailing assurance or the exercise of the testamentary power conferred by that Act, see sub-s. 4 ibid., and see the 12th Schedule to the (English) L.P. Act, 1922, in regrd to enfranchised copyholds.
There are six circumstances necessary to the existence of this estate (which appears to be unaffected by the (English) Married Women's Property Act, 1882):--
(1) A canonicalor legal marriage.
(2) Seisin of the wife; as to corporeal hereditaments, it must be a seisin indeed, either actualor virtual (Co. Litt. 29 a, n. 3; 8 Rep.96 a), but as to incorporeal hereditaments, a seisin in law is sufficient, where a seisin in deed is impossible. See the judgment of Sir George Jessel in Eager v. Furnivall, (1881) 17 Ch D 115.
(3) The wife's estate must have been in possession and not in reversion expectant on a life estate or othr freehold estate. 2 Black. Comm. 127.
(4) Birht of issue, alive and during the mother's existence (Paine's case, 8 Rep. 34). It is immaterial whether the issue live or die, or whether it be born before or after the wife's seisin. If a woman inheritable marries, has issue, her husband dies, and she takes another husband and has issue, which dies, and then the wife dies, the second husband shall be tenant by the curtesy, though the issue by the first husband be living.
(5) The issue must have been capable of inheriting as heir to the wife.
(6) Death of the wife. The husband's title to the curtesy is initiated at the birth of issue, and consummated at the death of his wife.
It is to be observed that by the custom of gavelkind, a husband may be tenant by the curtesy, without having had any issue by his wife. This curtesy is only of a moiety of the wife's lands, and cases if the husband marry again.
By s. 20 (viii) (English) S.L. Act, 1925, a tenant by the curtesy of full age and in possession has the powers of a tenant for life.
All persons capable of taking freehold estates maybe tenants by the curtesy; but aliens cannot, except under the British Nationality and Status of Aliens Act, 1914, nor felons (Co. Litt. 30 b, n. 7), except under the Forfeitue Act, 1870 (33 & 34 Vict. c. 23). A condition to restrain the husband of a feme-donee in tail from curtesy is repugnant and void, Co. Litt. 224 a.
An estate by the curtesy, in respect of the estate tail,or of any prior estate created by the settlement as well as a resulting use or trust to or for the settlor, is to be deemed a prior estate under the settlement within the contemplation of the (English) Fines and Recoveries Act, 1833 (3 & 4 Wm. 4, c. 74), s. 22, appointing a protector; the husband would therefore be the protector of the settlement. See Bisset on Life Estate, c. iii.
Some English writers (Mirror, c. 1. S. 3) ascribe the law of curtesy to Henry I., but Nthaniel Bacon (Government, 4 to, 1647, p. 105) calls it a law of counter-tenure to that of dower, and yet supposes it as ancient at the time of the Saxons, an tht it was therefore rather restored by Henry I., than introduced by him. But there is no trace of this courtesy among the laws of the Saxons, nor among those we have of Henry I, 1 Reeve, 298; Cham. On Est., c. iii., p. 92.
In Scotland, the liferent of a wife's heritable estate accorded ex lege to her surviving husband. There musthave been a child of themarrige who would be (if he survived) themother's heir.
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