the wife's death, for the residue of his own life in such lands and tenements of his wife as she was solely seised of in fee simple or fee tail in possession. The husband, while in the enjoyment of this estate, was called a tenant by the curtesy of England, or more shortly, tenant by the curtesy.1

The husband could dispose of the estate which he took during coverture or by the curtesy in lands belonging to his wife at common law, without her concurrence; and it was subject to his debts in his lifetime either upon execution of a judgment against him, or on his bankruptcy. But he could make no lawful disposition of her freehold estates to endure beyond his own interest. So that, if his wife survived him, she resumed her right to her freehold estates, which could not be defeated by his debts or alienations. And if he survived her, her estates in fee simple or tail descended to her heir, if she were the purchaser, or to the heir of the purchaser, if she had become entitled by descent, subject only to the husband's estate by the curtesy, if he had become entitled thereto. For the incapacity, under which a married woman labored at common law, not only hindered her from making any separate disposition of her lands in her lifetime, but also prevented her from devising them by her will..

ID., 359. In modern times, however, if property of any kind were vested in trustees, in trust to apply the income for the separate use of a woman during any coverture, present or future, the trust for the separate use of the wife might be enforced in equity. That is, the Courts of Equity obliged the trustees to hold for the sole benefit of the wife, and prevented the husband from interfering with her in the disposal of such income; she consequently enjoyed the same absolute power of disposition over it as if she were sole or unmarried.

In., 363-367. The capacity of wives with regard to property was completely altered by the Married Women's Prop

'The marital estates of Curtesy and Dower have been considered elsewhere. See pp 263-278, supra.

erty Act, 1882. By this Act, a married woman is capable of acquiring, holding and disposing, by wil or otherwise, of any real or personal property, in the same manner as if she were a feme sole, without the intervention of any trustee.

A wife may now dispose during coverture of her statutory separate property, whether real or personal, by the same means by which a single woman may transfer property of the like nature. She may therefore convey any legal estate of freehold, which is her separate property, by deed of grant, without the necessity of acknowledgment or of her husband's concurrence.

.. A man's capacity for disposing of his own estates in land remains unchanged by the act of marriage; and during a husband's life, the law does not give to the wife any control over his powers of disposition or any interests in the rents and profits of his land. After her husband's death, however, a widow becomes in some cases entitled to a life interest in part of her late husband's lands. This interest is termed the dower of the wife.

N. Y. L., 1860, c. 90, sec. I. The property, both real and personal, which any married woman now owns, as her sole and separate property, which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or services, carried on or performed on her sole or separate account; that which a woman married in this State owns at the time of her marriage, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent.

WILLIAMS, REAL PROP. (17th ed.), 374-377

The legislation in New York, to which reference has been

made, places the married woman, so far as her real property is concerned, and the same is true as to her personalty, substantially in the situation of a feme sole. The common-law estate during coverture no longer exists. She controls and conveys her realty as she sees fit, and the husband is not required to join in her transactions in order to give them validity.

From 1848 to the present the work of legislative change in regard to the property rights of married women, both real and personal, has been steadily going on in the different States of the Union. In some the steps have been taken boldly, and the change has probably been as sweeping as that in the State of New York; in others, timidity has characterized the movement, and many of the common-law disabilities still remain. The general tendency everywhere, however, has been to enlarge greatly the wife's freedom of action in regard to her separate property.

The wife's separate estate in equity has been quite generally recognized in this country, but more especially in the Southern States. See Steel v. Steel, 1 Ired. Eq. (N. C.) 452. It has received full recognition in the State of New York. See Jaques v. The Methodist Episcopal Church, 17 Johns. 548.. The effect of the acts in regard to the property rights of married women has been to change the wife's equitable right to hold a separate estate into a legal estate. See Wood v. Wood, 83 N. Y. 575. But the jurisdiction of equity can still undoubtedly be invoked whenever it becomes necessary to apply to that tribunal for the protection of the wife's separate property interests.-Hutchins' note.

CHAPTER V.

OCCUPANCY.

2 BL. COM., 258-260. Occupancy is the taking possession of those things which before belonged to nobody. This, as we have seen, is the true ground and foundation of all property, or of holding those things in severalty, which by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested that he who could first declare his intention of appropriating anything to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome, quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property (for of personal chattels I am not in this place to speak), hath been confined by the laws of England within a very narrow compass: and was extended only to a single instance: namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden; in this case he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy.

This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly was supposed so to do;

for he had parted with all his interests, so long as cestuy que vie lived it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this: it did not belong to the grantee, for he was dead: it did not descend to his heirs, for there were no words of inheritance in the grant: nor could it vest in his executors, for no executors could succeed to a freehold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands: for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king, therefore, there could be no prior occupant, because nullum tempus occurrit regi. And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right by the terms of the original grant, to enter upon and occupy this hæreditas jacens, during the residue of the estate granted though some have thought him so called with no very great propriety, and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II., c. 3, which enacts (according to the ancient rule of law) that where there is no special occupant, in whom the estate may vest, the tenant pur auter vie may devise it by will, or it shall go to the executors or administrators, and be assets in their hands for payment of debts: the other, that of 14 Geo. II., c. 10, which enacts that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel interest.