11. It has been stated that the possession of a Tit. 1. f 28. lessee for years is the possession of the person to whom the inheritance descends, even before the receipt of rent. And if lands which are let for years descend upon a married woman, who lives beyond the day on which the rent becomes due, without receiving it, yet her husband will be entitled to curtesy.

The

12. An estate tail descended from her brother to Alice Richardson, who was married, and had issue; the lands were let on leases for years, and the rents were payable at Michaelmas and Lady-day. tenants being greatly in arrear, Alice did not receive any of the Lady-day rents, but died four months after that time; nor did any other person receive rent during her life. The question was, whether her husband was entitled to be tenant by the curtesy.

Lord Hardwicke said, if Alice had died before Lady-day, there could not have been a doubt of the husband's right to curtesy; because he could do nothing till the rent became due. The only objection arose from the neglect of the husband in not distraining for the rent which became due at Lady-day. The receipt of rent would have amounted to an actual seisin. If the representatives of the brother had received any rent during the life of the wife, it would have been a materiał objection, but no part of the rent which accrued after the death of the brother was ever received by the wife, or by any other person; so that the possession of the lessee was the possession of the wife; nor could there be any other without making the husband a trespasser. Decreed that the husband was entitled to be tenant by the curtesy.

Tit. 8. c. 1.

Guavara's
Case,
8 Rep. 96 a.

vide Tit. 8.

c. 1.

1 Inst. 29 a. 32 a.

Tit. 6. c. 3.

3° Issue.

1 Inst.30 a.

67 a.

Who must be born alive.

Bract. 438 a.

13. A devise to executors for payment of debts does not prevent the descent of the freehold and inheritance; from whence it follows that, in a case of this kind, there will be curtesy.

14. A person, who had issue a daughter, devised his lands to his executors for payment of his debts, and until his debts were paid. The executors entered. The daughter married, had issue, and died: afterwards the debts were paid. It was resolved that the husband should be tenant by the curtesy.

15. Where the estate of the wife is let for life, before the marriage; the husband cannot acquire a seisin thereof, and will not therefore be entitled to curtesy. If a rent be reserved, it seems doubtful whether the husband will be entitled to it. In a similar case Lord Coke was of opinion that the wife should have dower.

16. With respect to the seisin which is necessary, in incorporeal hereditaments, to give a title to curtesy it will be stated in Title XXI. Advowson, and the subsequent titles.

17. The third circumstance required to the existence of an estate by the curtesy is issue; after which the husband was formerly allowed to do homage alone, and was called tenant by the curtesy initiate. Such issue must however have the following qualities to entitle the husband to curtesy: 1. It must be born alive; 2. In the lifetime of the mother; 3. Be capable of inheriting the estate.

18. By the old law it was deemed necessary that the child should be heard to cry and that circumstance was to be proved by persons who actually heard 1 Inst. 29 b. it, not by those who learned it by hearsay. Littleton & Rep. 34 b. however appears to have doubted whether it was Benl. R. 25. necessary to prove that the child cried; and Lord,

Dyer, 25 b.

ΙΟ

Coke deduces an argument from the form of pleading, in cases of this kind, to prove that any other evidence

would be sufficient.

time of the

1 Inst. 29 b.

8 Rep. 35 a.

19. The issue must be born in the lifetime of the In the Lifewife so that if the wife dies in childbed, and the wife. issue is taken out of the womb by the Cæsarean operation, the husband will not be entitled to curtesy. For 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 in his mother's womb; and the estate, being once so vested, shall not be taken from him.

20. It is immaterial whether the issue be born 8 Rep. 35 b. before or after the seisin of the wife. Thus if, after issue is born, lands descend to the wife, be the issue

dead or alive at the time of the descent, the husband

shall be tenant by the curtesy. So if, after the death 13 Rep. 23. of the issue, the wife acquires lands in fee, and dies without having had any other issue, her husband shall be tenant by the curtesy. For the having issue and being seised during the coverture is sufficient, though it be at several times.

21. The issue must be such as is capable of inheriting the estate: therefore if lands be given to a woman, and the heirs male of her body, who has issue a daughter only, her husband will not be tenant

by the curtesy.

And capable

of inheriting the Estate.

1 Inst. 29 b.

8 Rep. 35 b.

22. If a woman seised in fee marries, has issue, 8 Rep. 34 b. and then the husband dies, and she takes another husband, and has issue by him, though the first issue be living, yet the second husband shall be tenant by the curtesy; because his issue by possibility may inherit, if the first issue die without issue.

23. It is a rule of law that no person can be heir Tit. 29. c. 3. to an ancestor, unless such ancestor died seised:

hence probably arose the doctrine which requires an actual seisin in the wife; for, without such an actual seisin, her issue would not be capable of inheriting from her.

་

24. If the wife has issue, and after is attainted of felony, so as the issue cannot inherit to her, yet the husband shall be tenant by the curtesy, in respect of the issue born before the felony, which by possibility might then have inherited. But if the wife had been attainted of felony before issue had, although she had issue afterwards, the husband would not be tenant by the curtesy.

25. The fourth and last circumstance necessary to give a title to curtesy is the death of the wife; by which the estate of the husband becomes consummate.

26. By the special custom of gavel-kind, a husband who survives his wife is entitled to a moiety of her lands, whether he has issue or not; but which, in conformity to the custom of Normandy, is forfeited by a second marriage. Mr. Robinson, in his treatise on Gavel-kind, observes that this was formerly called the Man's Free Bench; and cites a record of 21 Edw. I. in which the custom is recognized.

27. As to the persons who are capable of acquiring an estate of this kind, it will be sufficient to observe, that all those who are capable of taking freehold estates, may be tenants by the curtesy.

28. An alien cannot be tenant by the curtesy, for although he may take an estate by purchase, for the benefit of the crown, yet he cannot take an estate by act of law for the law will not transfer an estate to a person who cannot keep it, but must immediately give title to another. If an alien be made a denizen, and afterwards has issue, he may be tenant

by the curtesy, in respect of such issue; though he would not be entitled on account of issue had before.

29. Persons attainted of treason or felony cannot Bro. Ab. be tenants by the curtesy; for, being extra legem Curtesy, 15. positi, they are become incapable of deriving any benefit from the law; and by consequence, of this in particular, which intended to give the inheritance only to those who were capable of holding it during their lives.