A New Abridgment of the Law, Vol. 3 of 7 (Classic Reprint)
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Excerpt from A New Abridgment of the Law, Vol. 3 of 7 Tenant by the curtesy is he, who after his wife´s death (having had issue by her inheritable) is introduced into her inheritance, and has an estate for life therein; and he is so called from the favour or curtesy of that law which made this provision for him, to which he had no natural right, nor to which any other nations, (a) except those of Great Britain and Ireland, admitted him. Dr. & Stud. lib. 1, c. 7; Co. Lit. 30, a; Cowell, tit. Curtesy; it began in England and Ireland in the time of H. 1, Seld. Jan. 65; and in Scotland in the time of Malcolm. Macan. 56. Both by a positive institution. 0 Four things are requisite to constitute a tenancy by the curtesy, namely, marriage, seisin of the wife, issue, and death of the wife. It is not, however, indispensable that seisin and issue should concur at the same time. Jackson v. Johnson, 5 Cowen, 74.£ (a) [This is a mistake; it was known in other countries, though not under this name. By the rescript of Constantine it is established, ut hoereditatis maternoe pater usum fructum,filii proprietatem haberent. Crag. j. f. dieg. 22, $40; Cod. 1. 6, le. 1. And the laws of the Almains define the estate almost in the very terms used by the laws of England. Lindenbrog, L. Aleman. 1, 92. We find it in the feudal system, not indeed as a necessary consequence of the feudal tenure in its original purity, but arising from the express terms of the investiture. The language of the feudal law is maritus uxori non succedit in feudum, nisi sit specialiter investitus. Wright´s Ten. 193, n. c. B This estate was not unknown to the ancient Germans and Normans; and in France there were several customs, which gave a somewhat similar estate to the surviving husband out of the wife´s inheritances. Bouv. L. D., Estate by the Curtesy; Merlin, Repert. mots Linotte, et Quarte de Conjoint pauvre.g Sir W. Blackstone inclines to think, that tenancy by the curtesy of England was so called, as signifying an attendance upon the lord´s court or curtis, (that is, being his vassal or tenant,) not as denoting any peculiar favour belonging to this island. 3 Comm. 126. The contrary, however, is maintained by one of his successors in the Vinerian chair. 2 Wooddes. 18. [The words of this law, as they are found in a writ of 11 H. 3, ordaining the reception of it in Ireland, are, Si aliquis desponsaverit aliquam mulierem, sive viduam, sive aliam, hoereditatem habentem, et ipse post-modum ex eâ prolem suscitaverit, eujus clamor auditus fuerit inter quatuor parities, idem vir, si super vixerit ipsam uxorem suam, habebit totâ vitâ suâ custodiam hoereditatis uxoris suoe licet ea fortè habuerit hoeredem, de primo viro suo qui fuerit plenoe oetatis. Rot. Claus. 11 II. 3; Wright´s Ten. 193, n. 9; Hale´s Hist. C. L. 180. The right of a husband to retain the land of his deceased wife was confined, according to Glanville,(5) to such estates as were given with the woman in maritagium. But in Bracton´s time the claim had extended itself; for he says, (c) the husband should have the land if he married a woman habentem hoereditatem vel maritagium, vel aliquam terram ex causa donationis, having any inheritance, whether a maritagium or other gift of land. (6) Lib. 7, c. 18. (c) Lib. 5, c. 30, 7. It appears from both these writers, that the second husband was equally entitled to be tenant by the curtesy with the first. But this doctrine was combated by one Stephanus de Segrave, whose name is found among the justices itinerant in the reign of Henry the Third, as founded on a misconception of the meaning and design of this sort of estate. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com
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