SECTION III. CURTESY CONSUMMATE. THE husband's curtesy, which, as before observed (k), initiates on the birth of issue capable of inheriting the wife's estate, becomes consummate on the dissolution of the marriage by her decease. The husband, while in the enjoyment of this estate, is called tenant by the curtesy, and sometimes tenant by the curtesy of England; though why of England, in particular, is not apparent; since the same right exists in Scotland, and was, I apprehend, common to every country under the feudal government. The wife's estate, to be subject to the curtesy, may be either legal or equitable. But it must be a several one, or else held under a tenancy in common. It must not be joint (1). It must also be an estate in possession (m). "It would seem," says Mr. Williams (n), " that under the law of inheritance, as it now stands, the husband can never become tenant by the curtesy to any estate which his wife has inherited. For descent is now traced, not from the person last actually seised, but from the last purchaser (o). The issue of the wife, therefore, must trace their descent, as heirs to the estate, not from the wife, but from the purchaser; and there is consequently no possibility of their ever inheriting the estate as her heirs. The condition, therefore, which would entitle the husband to become tenant by the curtesy cannot be fulfilled." (k) Supra, p. 123. (n) Real Property, p. 168. (0) Under the 3 & 4 Will. 4, c. 106, establishing the new rules of descent. CURTESY CON SUMMATE. CURTESY CON- For which, and for other reasons, it is probable that tenants by the curtesy will but rarely hereafter give trouble to the Courts; and much curious learning relative to them and their estates is now become useless. One thing, however, may be adverted to; namely, that where the husband alone has, during the coverture, charged his wife's estate, the charge, which would otherwise expire with the coverture, will, on his becoming tenant by the curtesy, continue during his life (p). (p) 1 Rop. 137. CHAPTER VIII. LIABILITIES ARISING FROM THE DISSOLU- SECTION I. THE HUSBAND'S OBLIGATION TO BURY HIS DECEASED WIFE. THE husband is bound to bury his deceased wife; that is to say, he is bound to defray the charges of her interment. This is a legal obligation. Thus, in Jenkins v. Tucker (a), on the death of a wife during the absence of her husband abroad, a person who had paid the expenses of her funeral (the same having been suitable to the rank and fortune of the husband) was held entitled to recover from him the amount of the money so laid out. Nay, even an infant husband may contract for the interment of his deceased wife; for, in the case of Chapple v. Cooper (b), before cited, the Court of Exchequer stated the law to be as follows: "There are many authorities which lay it down that decent Christian burial is a part of a man's own rights; and we think it is no great extension of the rule to say, that it may be classed as a personal advantage, and reasonably necessary to him. His property, if he leaves any, is liable to be appropriated by his administrator to the performance of this proper ceremonial. If then this be so, the decent Christian burial of his wife and lawful children, who are the persona conjunctæ with him, is also a personal (a) 1 H. Bla. 90. (b) 13 Mee. & Wel. 259. HUSBAND'S OBLIGATION TO WIFE. HUSBAND'S OBLIGATION TO BURY HIS DECEASED WIFE. advantage, and reasonably necessary to him; and then the rule of law applies, that he may make a binding contract for it. This seems to us to be a proper and legitimate consequence from the proposition that the law allows an infant to make a valid contract of marriage (c). If this be correct, then an infant husband may contract for the burial of his wife or lawful children. The contract will have validity, because it is a contract for the burial of those who are personæ conjuncta with him by reason of the marriage, and, as such, it is a contract for his own personal benefit." Hence, it will bind him, though under age. DEBTS OF DECEASED WIFE. SECTION II. DEBTS OF THE DECEASED WIFE. WE have seen, and have thought it a reasonable arrangement, that the law which gives the husband the wife's property, subjects him also to the payment of her debts. For those debts, of whatever amount, he is liable throughout the coverture; although he may have received no fortune or pecuniary benefit by his wife. There is nothing very hard in this, as a general rule; although it is true that in some instances unwary and incautious husbands are surprised, and perhaps confounded, after matrimony, by the discovery of unforeseen and unexpected embarrassments. We have now, however, arrived at the natural place for considering what becomes of the wife's debts at her death, the husband her surviving? Are they recoverable from her husband, who peradventure has received a million of money by his wife; or is he entitled to retain her dowry (c) It is new to say, that because an infant can marry, therefore he may enter into other contracts. See supra, p. 12. 193 CEASED WIFE. to his own exclusive use, bidding defiance to her creditors? DEBTS OF DEIn other words, does the law, (the perfection of reason,) and does equity, (the perfection of justice,) sanction an act which no honest man would commit? This question was answered, upwards of a century ago, by a very great judge, whose splendid reputation in his own day was not eclipsed even by the glory of his more fortunate successor. In the case of Heard v. Stanford, Lord Chancellor Talbot (d) thus expressed himself: "The question is, whether the husband, as such, be chargeable for a debt of his wife's, after her death, in a court of equity? As, on the one hand, the husband is by law liable to all his wife's debts during the coverture, although he did not get one shilling portion with her, and although her debts should amount to any sum whatever; so, on the other hand, it is as certain that if the debt be not recovered during the coverture, the husband is no longer chargeable as such, let the fortune he received be ever so great. The case perhaps may be hard, but the law hath made it so; and the alteration of it is the proper work of the legislature only" (e). Therefore, if the debts of the wife are not enforced during the coverture, the husband cannot be charged with them afterwards, either at law or in equity; her death furnishing an absolution or escape to him from all her obligations. (d) Lord Talbot was regarded by his cotemporaries as a "superior intelligence" (see his Life by Lord Campbell); but the reporters have not done him justice. His judicial career was short. He held the Great Seal for three years only. He died in office, in the flower of his age; and was succeeded by Lord Hardwicke. (e) See Lewis v. Nangle, Amb. 150. 3 P. Wms. 409, 410. 1 Sch. & Lef. 263. Woodman v. Chapman, 1 Camp. 189. See also Rolle's Abr. 351, where the law is stated in the following barbarous Norman text: "Si un feme soit en dette al auter, et prit baron, et morust, le Baron ne sera chargé en dette pur ceo apres mort del feme." |