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sibly arise from the grant, and that is an estate for life.a The life estate may be either for a man's own life, or for the life of another person, *and in this last case it is termed an estate per autre vie, which is the lowest species of freehold, and esteemed of less value than an estate for one's own life. The law in this respect has proceeded upon known principles of human nature; for, in the ordinary opinion of mankind, as well as in the language of Lord Coke, "an estate for a man's own life is higher than for another man's." A third branch of life estates may also be added, and that is, an estate for the term of the tenant's own life, and the life of one or more third persons. In this case, the tenant for life has but one freehold limited to his own life, and the life of the other party or parties.b

These estates may be made to depend upon a contingency, which can happen and determine the estate before the death of the grantee. Thus, if an estate be given to a woman dum sola, or durante viduitate, or to a person so long as he shall dwell in a particular place, or for any other intermediate period, as a grant of an estate to a man until he shall have received a given sum out of the rents and profits; in all these cases, the grantee takes an estate for life, but one that is determinable upon the happening of the event on which the contingency depended. If the tenant for the life of B. died in the lifetime of B., the estate was open to any general occupant during the life of B.; but if the grant was to A. and his heirs during the life of B., the heir took it as a

a Co. Litt. 42, a.

b Co. Litt. 41, b. There are several subtle distinctions in the books, growing out of this topic, whereof students, according to Lord Coke, "may disport themselves for a time;" and Mr. Ram has endeavoured to do so, in a puzzling note to his recent Outline of the Law of Tenure and Tenancy, 33.

C

Bracton, lib. 4, c. 28, sec. 1. Co. Litt. 42, a. The People v. Gillis, 24 Wendell, 201.

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special occupant. The statute of 29 Charles II., c. 3, made such an interest devisable, and if not devised, the heir was made chargeable with the estate as assets by descent, and it speaks of him as a special occupant. The statute of 14 Geo. II., c. 20, went further, and provided that if there was no such special occupant named, and the land be not devised, it was to go in a course of administration as personal estate. This peculiar estate pur autre vie, has been frequently termed a descendible freehold, but it is not an estate of inheritance, and perhaps, strictly speaking, it is not a descendible freehold, in England, for the heir does not take by descent. It is a freehold interest sub modo, or for certain purposes, though in other respects it partakes of the nature of personal estate. In New-York, an estate pur autre vie, whether limited to heirs or otherwise, is deemed a freehold only during the life of the grantee or devisee, and after his death it is deemed a chattel real. The interest of every occupant, general or special, is, therefore, in New-York, totally annihilated; but the statute provisions in other states vary considerably upon this subject. In New-Jersey, the act of 1795 is the same as that in New-York; but Virginia and North Carolina follow in the footsteps of the English statutes, and leave a scintilla of interest, in certain events, in the heir as a special occupant. In Massachusetts and Vermont, on the death of the tenant pur autre vie, without having devised the same, the estate descends to

* Lord Kenyon, in Doe v. Luxton, 6 Term Rep. 289. By the statute of 1 Victoria, ch. 26, estates pur autre vie, if not devised, were to be chargeable in the hands of the heir, as assets by descent; and if there be no special occupant, they were to go as already provided.

b N. Y. Revised Statutes, vol. i. 722, sec. 6.

e Revised Code of Virginia, vol. i. 233. Revised Statutes of North Carolina, vol. i. 278. In Maryland, estates pur autre vie, except those granted to the deceased and heirs only, are considered as assets in the hands of the executor or administrator. Act of 1798, ch. 101. Dorsey's Testamentary Law of Maryland, 88.

his lawful representatives, like estates in fee-simple." In many other states, the real and personal estates and all interests therein, go in the same course of distribution.

(2.) Tenancy by the curtesy, is an estate for life, created by the act of the law. When a man marries a woman, seised, at any time during the coverture, of an estate of inheritance, in severalty, in coparcenary, or in common, and hath issue by her born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life, by the curtesy of England; and it is immaterial whether the issue be living at the time of the seisin, or at the death of the wife, or whether it was born before or after the seisin.b

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This estate is not peculiar to the English law, as Littleton erroneously supposes, for it is to be found, with some modifications, in the ancient laws of Scotland, Ireland, Normandy, and Germany. Sir Martin Wright is of opinion, that curtesy was not of feudal origin, for it is laid down expressly in the book of feuds, that the husband did not succeed to the feud of the wife, without a special investure; and he adopts the opinion of Craig, who says, that curtesy was granted out of respect to the former marriage, and to save the husband from falling into poverty; and he deduces curtesy from one of the

* Revised Statutes of Massachusetts, 413. Revised Statutes of Vermont, 292.

b Litt. sec. 35. 53. Co. Litt. 29, b. Paine's case, 8 Co. 34. If the issue take as purchasers, the husband is not entitled to take by the curtesy, as where there was a devise to the wife and her heirs, but if she died leaving issue, then to such issue and their heirs. Barker v. Barker, 2 Simons, 249. e Litt. sec. 35.

a Co. Litt. 30, a. Wright on Tenures, 193. 2 Blacks. Com. 116. In Normandy, according to the Coutumier, c. 119, the curtesy lasted only during the widowhood of the husband.

e Feud. lib. 1, tit. 15; lib. 2, tit. 13.

rescripts of the Emperor Constantine. But, whatever may have been the origin of this title, it was clearly and distinctly established in the English law, in the time of Glanville; and it was described by Bracton, and especially in a writ, in 11 Hen. III., with the fulness and precision of the law definitions at the present day. Though the extent of it, as against the adult heir of the wife, may be justly complaind of, yet it is remarkable, that curtesy has continued unimpaired, in England and Scotland, *and it remains almost entirely unshaken in our American jurisprudence.

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South Carolina is an exception, for in that state tenancy by the curtesy, eo nomine, has ceased by the provision of an act in 1791, relative to the distribution of intestates' estates, which gives to the husband surviving his wife the same share of her real estate as she would have taken out of his, if left a widow, and that is either one moiety or one-third of it, in fee, according to circumstances. In Georgia, also, tenancy by curtesy does not exist; because all marriages, since 1785, vest the real equally with the personal estate of the wife in the husband.

Four things are requisite to an estate by the curtesy, viz. marriage, actual seisin of the wife, issue, and death of the wife. The law vests the estate in the husband immediately on the death of the wife, without entry.

Wright on Tenures, 194. Craig's Jus Feudale, lib. 2. Dieg. 22. sec.

Bracton, lib. 5, c. 30, sec. 7.

Glanville, lib. 7, c. 18. Hale's Hist. Com. Law, c. 9. In the form of the writ given by Sir Matthew Hale, in which Henry III. directs the English laws to be observed in Ireland, tenancy by the curtesy is stated, even at that time, to be consuetudo et lex Angliæ ; and the Mirror, c. 1, sec. 3, says, that this title was granted of the curtesy of King Henry I.

• In Scotland, there is this variation in the curtesy from that in England, that the wife must have been seised of the estate as heir, and not have acquired it by purchase, though it is admitted there is no good reason for the distinction. Bell's Com. vol. i. 5th edit. 61.

His estate is initiate on issue had, and consummate on the death of the wife."

The wife, according to the English law, must have been seised in fact and in deed, and not merely of a seisin in law of an estate of inheritance, to entitle the husband to his curtesy. The possession of the lessee for years is the possession of the wife as reversioner; but if there be an outstanding estate for life, the husband cannot be tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during the coverture.c This is still the general rule at law, though in equity the letter of it has been relaxed by a free and liberal canstruction. The circumstances of this country have justly required some qualification of the strict letter of the *rule relative to a seisin in fact by the wife; and if she be owner of waste, uncultivated lands, not held adversely, she is deemed seised in fact, so as to entitle her husband to his right of curtesy. The title to such property draws to it the possession; and that constructive possession continues, in judgment of law, until an adverse possession be clearly made out; and it is a settled point in our courts, that the owner of such lands is deemed in

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• In Pennsylvania the husband's curtesy by statute in 1833 is good, though there be no issue of the marriage. Purdon's Dig. 550. In 1831, a bill upon the suggestion of the English Real Property Commissioners was brought into parliament, to abolish the rule that the issue in curtesy must be born alive, but the bill was suffered to drop.

b Co. Litt. 29, a. Mercer v. Selden, 1 Howard U. S. Rep. 37.

• Perkins, sec. 457. 464. Co. Litt. 29, a. De Grey v. Richardson, 3 Atk. 469. Gentry v. Wagstaff, 3 Dev. N. C. Rep. 270. Stoddard v. Gibbs, 1 Sumner, 263.

d De Grey v. Richardson, 3 Atk. 469. Sterling v. Penlington, 7 Viner, 149, pl. 11. 3 Eq. Ca. Abr. 730.

• Jackson v. Sellick, 8 Johns. Rep. 262. Clay v. White, 1 Munf. 162. Green v. Liter, 8 Cranch's Rep. 249. Davis v. Mason, 1 Peters' U. S. Rep. 503. Smoot v. Lecatt, 1 Stewart's Ala. Rep. 590. M'Corvy v. King, 3 Hump. Tenn. Rep. 267.