Four things are requisite to an estate by the courtesy, 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. 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 courtesy. 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 courtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during the coverture. This is still the general rule at law, though in equity the letter of it has been relaxed by a free and liberal construction. The circum stances of this country have justly required some quali*30 fication 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 courtesy. 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 possession, so as to be able to maintain trespass for entering upon the land and cutting the timber. To entitle the husband to courtesy, he must be a citizen and not an alien, for an • In Pennsylvania, the husband's courtesy 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 courtesy must be born alive, but the bill was suffered to drop. b Co. Litt. 29. a. Mercer v. Selden, 1 Howard's U. S. Rep. 37. • Perkins, sec. 457. 464. Co. Litt. 29. a. Gentry v. Wagstaff, 3 Dev. N. O. Rep. 270. De Grey v. Richardson, 3 Atk. 469. 11. 3 Eq. Ca. Abr. 730. De Grey v. Richardson, 3 Atk. 469. Stoddard v. Gibbs, 1 Sumner, 263. Sterling v. Penlington, 7 Viner, 149, pl. • Jackson v. Sellick, 8 Johns. Rep. 262. v. Liter, 8 Cranch's Rep. 249. Davis v. Smoot v. Lecatt, 1 Stewart's Ala. Rep. 590. Rep. 267. Clay v. White, 1 Munf. 162. Green alien husband was not at common law entitled to courtesy, any more than an alien wife was entitled to be endowed; and the wife must have had such a seisin as will enable her issue to inherit; and, therefore, if she claims by descent or devise, and dies before entry, the inheritance will go, not to her heir, but to the heir of the person last seised, and the husband will not have his courtesy.a The rule has been carried still further in this country; and in one state, where the title by courtesy is in other respects as in England, it is decided that it was sufficient for the claim of courtesy that the wife had title to the land, though she was not actually seised, nor deemed to be so.b The law of courtesy in Connecticut is made to symmetrize with other parts of their system; and in that state, ownership without seisin is sufficient to govern the descent or devise of real estate.c At common law, the husband could not be tenant by the courtesy of a used but it is now settled in equity, that he may be a tenant by the courtesy of an equity of redemption, and of lands of which the wife had only a seisin in equity as a cestui que trust. So, if money be agreed to be laid out *in the purchase of land, the money is considered *31 as land in the view of a court of equity, and the husband will be allowed his courtesy. Though the husband be entitled to his courtesy in a trust estate, it has been a questionable point, whether it must not be such a trust estate as will give him an equitable seisin. The wife must have had a seisin of the freehold and inheritance, simul et semel, either • Jackson v. Johnson, 5 Cowen's Rep. 74. Adair v. Lott, 3 Hill, 182. Bush v. Bradley, 4 Day's Rep. 298. Kline v. Bebee, 6 Conn. Rep. 494. The severity of the ancient law on the right to courtesy is much relaxed in England, as well as in this country, and a constructive seisin of the wife is sufficient to sustain the husband's right to his courtesy, where it is not rebutted by an actual disseisin. See De Grey v. Richardson, and Sterling v. Penlington, sup., and Ellsworth v. Cook, 8 Paige's Rep. 643. 4 Day's Rep. ub. sup. 4 Gilbert on Uses, by Sugden, 48. 440. • Watts v. Ball, 1 P. Wms. 108. In Virginia, by statute, (1 R. C. 1819,) the husband has his courtesy in a trust estate. So it is in Maine, and deemed to be so throughout the country. 1 Sumner, 128. Sweetapple v. Bindon, 2 Term, 536. Watts v. Ball, 1 P. Wms. 108. Chaplin v. Chaplin, 3 ibid. 229. Cashborne v. Scarfe, 1 Atk. 693. Cunningham v. Moody, 1 Ves. 174. Dodson v. Hay, 3 Bro. 404. at law or in equity, during the coverture. In Roberts v. Dixwell, Lord Hardwicke held, that the husband might have his courtesy in an estate devised to the wife for her separate use; but afterwards he declared, that a seisin in law or in equity, was essential to a tenancy by courtesy. The opinions of Lord Hardwicke, in Hearle v. Greenbank and Roberts v. Dixwell, are conflicting, and cannot be reconciled; and it would seem to have followed, that if the equitable freehold was out in trustees for the separate use of the wife, and kept distinct during the coverture from her equitable remainder in fee, that she wanted that seisin of the entire equitable estate requisite to a tenancy by the courtesy. But it is now settled otherwise, and the husband is tenant by the courtesy if the wife has an equitable estate of inheritance, notwithstanding the rents and profits are to be paid to her separate use during the coverture. The receipt of the rents and profits are a sufficient seisin in the wife. And if lands be devised to the wife, or conveyed to trustees for her separate and exclusive use, and with a clear and distinct expression that the husband was not to have any life estate or other interest, but the same was to be for the wife and her heirs; in that case, the *32 court of chancery will consider the husband a trustee *for the wife and her heirs, and bar him of his courtesy.d But the husband of a mortgagee in fee is not entitled to his courtesy, though the estate becomes absolute at law, unless there has been a foreclosure, or unless the mortgage has subsisted so long a time as to create a bar to the redemption. The rule has now become common learning, and it is well understood that the rights existing in, or flowing from the mortgagee, are subject to the claims of the equity of redemption, so long as the same remains in force. Hearle v. Greenbank, 1 Ves. 298. 3 Atk. 716. S. C. b 1 Atk. 607. • Pitt v. Jackson, 3 Bro. 51. Morgan v. Morgan, 5 Madd. Rep. 248, Amer. ed. If the wife's land be sold in partition after her death, the husband, as tenant by the courtesy, will be entitled to the use of the proceeds for life, upon giving security for repayment at his death. Clapper v. Livergood, 5 Watts, 113. d Bennet v. Davis, 2 P. Wms. 316. Cochran v. O'Hern, 4 Watts & Serg. 95. This is so stated in Chaplin v. Chaplin, as reported in 7 Viner, 156, pl. 23; and the same thing is declared by Lord Hardwicke, in a case which Lord Lough. borough cited from his note book, in 2 Ves. jr. 433. Courtesy applies to qualified as well as to absolute estates in fee, but the distinctions on this point are quite abstruse and subtle. It was declared in Paine's Case, to be the common law, that if lands had been given to a woman, and the heirs of her body, and she married and had issue which died, and then the wife died without issue, whereby the estate of the wife was determined, and the inheritance of the land reverted to the donor, yet the husband would be entitled to hold the estate-tail for life as tenant by the courtesy, for that was implied in the gift. So, where an estate was devised to a woman in fee, with a devise over, in case she died under the age of twenty-one, without issue, and she married, had issue which died, and then she died, under age, by which the devise over took effect; still, it was held, the husband was entitled to his courtesy. But there are several cases in which courtesy, as well as dower, ceases upon the determination of the estate; and this upon the maxim, that the derivative estate cannot continue longer than the primitive estate, cessante statu primitivo cessat derivativus. As a general rule, courtesy and dower can only be commensurate with the estate of the grantee, and must cease with the determination of that estate. They cease necessarily where *the seisin was wrongful, and *33 there is an eviction under a title paramount. The distinction is principally between a condition and a limitation. If the wife's seisin be determined by a condition in deed expressly annexed to the estate, and the donor or his heirs enter for breach of the condition, the courtesy is defeated, for the donor reassumes his prior and paramount title, and all intermediate rights and incumbrances are destroyed. On the other hand, a limitation merely shifts the estate from one person to another, and leaves the prior seisin undisturbed. The limitation over takes effect, and the estate next in expectancy vests without entry, and the courtesy is preserved. If, however, instead of being a simple limitation, it be a conditional limitation, it is said that, in that case, the courtesy would be defeated, for the conditional limitation cuts off, or produces a cesser of the estate upon which it operates. The cases of an estate-tail ■ 8 Co. 34. Buckworth v. Thirkell, 3 Bos, & Pull. 652, note. determining by failure of issue, and of a fee determining by executory devise or springing use, are exceptions to the general rule, denying courtesy or dower after the determination of the principal estate. *34 *Though the wife's dower be lost by her adultery, no such misconduct on the part of the husband will work a forfeiture of his courtesy ; nor will any forfeiture of her estate by the wife defeat the courtesy. The reason, says Lord Talbot, why the wife forfeits her dower, and the husband does not forfeit his courtesy in cases of misconduct, is because the statute of Westm. 2, gave the forfeiture in one case and not in the other. This is showing the authority, but not the reciprocal justice or equity of the distinction. There is no parity of justice in the case. So, the husband, as well as any other Buckworth v. Thirkell, 3 Bos. & Pull. 652, note. Butler's note 170, to Co. Litt. 241. a. Roper on Husband and Wife, vol. i. 36, 37. Preston on Abstracts of Title, vol. iii. 384. Park on Dower, 172. 186. Mr. Butler, in speaking of limited fees, which by the grant are to continue only to a certain period, observes that courtesy and dower will continue after the expiration of the period to which the fee was to continue. But where the fee was originally created by words importing an absolute fee, and by subsequent words was made determinable upon some particular event, there the courtesy and dower cease with the estate to which the event is annexed. The case of Buckworth v. Thirkell, stands in the way of the doctrine of Mr. Butler, and Lord Mansfield decided, that the case before him was one of a contingent, and not of a conditional limitation. Lord Alvanley, in 3 Bos. & Pull. 654, cites the distinction of Mr. Butler as worthy of attention, and Mr. Roper has varied it and discussed it. Neither of them, as it would seem, have traced the lines of the distinction with satisfactory clearness and precision, or shown any sound principle on which it rests. The subject is replete with perplexed refinements, and it is involved too deep in mystery and technical subleties to be sufficiently intelligible for practical use. Here arises a proper case for the aid of the reformer. When any particular branch of the law has departed widely from clear and simple rules, or, by the use of artificial and redundant distinctions, has become uncertain and almost incomprehensible, there is no effectual relief but from the potent hand of the law-giver. Preston on Abstracts of Title, vol. iii. 385. Smoot v. Lecatt, 1 Stewart's Ala. Rep. 590. Mass. Revised Statutes, 1835. Whether a divorce a vinculo will destroy courtesy depends on circumstances, and there is some variety in the laws of the several states. If the cause of the divorce be for causes arising before marriage, the right to courtesy, as well as to other rights growing out of the marriage, is gone, but if for causes subsequent to marriage, the rule is not absolutely stable and uniform. See Hilliard's Abr. vol. i. 51, 52. • Sidney v. Sidney, 3 P. Wms. 276. In Indiana, the unequal rule is corrected, and the husband and wife are treated, |