§ 131. Tenant by the curtesy.—Where a man marries a woman who is seized during marriage of an estate of inheritance, and has by her issue born alive capable of inheriting the estate, and the wife dies before the husband, he takes an estate for life. This is sometimes called tenancy by the curtesy of England, though the same estate existed in ancient times in other countries. In this country the rule prevails in all the states where that kind of estate has not been abolished by statute. Though it is held that the wife's dower is lost by her adultery, no such conduct on the part of the husband will work a forfeiture of the curtesy.

$132. Dower.-Dower exists where a man seized of an estate of inheritance dies in the lifetime of his wife. By the common law she was entitled in that case to be endowed of a third of the estate for life. At first it was limited to lands held by the husband at the time of the marriage, but by Magna Charta it was extended to all lands, of which the husband was seized during coverture. This right or estate of dower exists in all of the states where it has not been modified or changed by statute. Dower can not be claimed as against a mortgage given by the husband for unpaid purchase-money. Nor is it necessary for a wife to join with her husband in a mortgage securing the purchase-money. If the wife unites with her husband in conveying his land, releasing her dower therein, her right is extinguished. If a wife joins in a mortgage with her husband, who dies, and upon foreclosure a surplus above the mortgage debt is realized, she may have dower in such surplus, though the husband may have released the

equity of redemption. Dower may be barred in various ways, though the husband by his act alone, without the wife's assent, can not bar it. It may be barred by deed, by the adultery of the wife, by divorce, by jointure, which is a joint estate settled upon husband and wife by which the whole estate goes to her on his death, by an antenuptial contract in which in lieu of dower a sum of money or something else is agreed to be taken in lieu of dower, by a bequest in lieu of dower, if the widow elects to take under the will.

§ 133. Assignment of dower.-The widow's dower may be set off or assigned by agreement with the heirs, or by an amicable partition, or by an adversary proceeding in which the court will see that she gets her equitable one-third of the real estate, to which her right of dower has attached.

§ 134. Estates upon condition.-Estates upon condition are such as have a qualification annexed to them by which they may upon the happening of a particular event be created, enlarged or destroyed. They are divided into estates upon conditions implied in law, and estates upon conditions express or in deed.

§ 135. Estates upon condition implied.-A tenant for life for years is under an implied obligation to refrain from waste or any fraudulent or wrongful act which would injure the freehold. For willful misconduct of this sort, the estate may be forfeited. a grant to a man of an office has the implied condition annexed to it that he will perform its duties. A corporation holds a franchise under the implied condition that it will fulfill its duties to the pub

lic, and a violation of its duties by non-user or misuse will work a forfeiture of the estate. It is to be here remarked, however, that it is for the state alone, and not for a private citizen to institute and carry on proceedings for forfeiture of corporate franchises. The state may waive a condition broken as an individual may.

§ 136. Estates upon condition expressed.-Where an estate is granted in fee-simple or otherwise, with an express qualification annexed whereby the estate shall commence, be enlarged or defeated upon performance or breach of such qualification or condition, it is an estate upon condition expressed. Conditions are either precedent or subsequent. Precedent conditions must happen or be performed before the estate vests. Subsequent conditions are such which by reason of non-performance defeat the estate already created.

§ 137. Conditions precedent and subsequent.-The intention of the parties as it appears in the deed determines whether the condition is precedent or subsequent. A condition precedent which is possible and lawful must be strictly performed. Conditions subsequent which defeat the estate are strictly construed against the grantor. Conditions must be annexed at the time the estate is created; they must operate upon the whole of the estate, though they may be limited to a part of the land. If an estate in fee is granted with a provision that upon the happening of an event the estate shall cease for a number of years, it would not be good. Conditions can only be reserved in favor of the grantor and his heirs. Conditions which are impossible when made,

or become so by the act of God, are void. Unlawful conditions are void. Conditions repugnant to the nature of the estate are not good, as if an estate is given in fee on condition that the grantee will not sell it or enjoy it. Conditions in absolute prevention of marriage are void, though in some states widows who take lands from their deceased husbands coupled with such a condition are bound by the conditions. Conditions may be performed by any one having an interest in the estate. Equity will relieve against forfeitures for breach of conditions when compensation can be made in damages. Where a condition is broken the grantor may bar himself from taking advantage of it, as by taking rent afterwards with knowledge. Mortgages are sometimes treated under the head of estates upon condition. They are so considered yet in some of the states, but in most of them they are treated as mere liens. The common law rule is that the mortgagee takes the title subject to be defeated by payment of the mortgage debt. This rule prevails in most of the older states, but a large majority of the states of the Union, either by statute or the decrees of the courts, treat a mortgage as a mere lien to secure the debt, while the title remains in the mortgagor until default, foreclosure and sale. The methods by which the mortgagor proceeds to enforce his lien after the maturity of the mortgage debt are regulated by the statutes of the different states.

§ 138. Estates in remainder.-Estates in remainder were popular in England because they facilitated the creation of family settlements, and often there were several remainders limited upon one another to prevent an estate passing out of the family. Remaind

ers are not favored in this country, anything tending to obstruct the free sale of land being opposed to the spirit of our people and institutions. Blackstone's definition is concise and comprehensive. "An estate in remainder is an estate limited to take effect and be enjoyed after another estate is determined." It is a vested remainder where there is a person in being who would have an immediate right of possession upon the ceasing of the precedent estate. It is a contingent remainder if the person to whom, or the event upon which it is limited is uncertain. If one holding the fee-simple grants lands to A for twenty years, and then to B and his heirs forever, A is tenant for years, remainder to B in fee. Or there may be a grant to A for years, then to B for life, and then to C and his heirs forever, then A is tenant for years, B for life, with remainder in fee to C. These several estates are parts of one estate, the fee-simple of the grantor out of which the three several estates are carved. It follows, of course, that no remainder can be limited after a grant in fee-simple. There must be a precedent estate created, upon which the remainder is limited, and this precedent estate is called in law the particular estate. It is essential also that the remainder must commence or pass out of the grantor at the time the particular estate was created. The remainder must vest in the grantee during the continuance of the particular estate, or instantly upon its termination. A contingent remainder may never take effect, as where there is a grant to A for life, remainder to B's eldest son (then unborn) in tail. If B has no son when the particular estate is