on money lent, be considered as accruing from day to day, and shall (in the absence of an express stipulation to the contrary) be apportionable in respect of time accordingly. But, in the case of rent, the entire amount payable on the usual day is received by the person then entitled to the reversion; the proportion due to any former owner being recoverable by the latter, or his representative, from the person who has received it. And, of course, no claim can be made against the lessee, in respect of rent, until such rent is actually payable by the terms of the tenancy. [II. The next estate for life is of the legal kind, as contradistinguished from the conventional. This is the estate of tenant in tail after possibility of issue extinct, which arises, where one is tenant in special tail, and the person from whose body the issue was to spring dies without issue, or (having left issue) that issue becomes extinct. In either of these cases, the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct (a). And the law makes use of this long periphrasis in order to give an adequate idea of his estate. For he has no longer an estate of inheritance, seeing that he can have no heirs capable of taking per formam doni. Nor yet is he merely tenant in tail without issue, for that would not have excluded the possibility of future issue. And lastly, he is not tenant in tail without possibility of issue, because he might at one time have had issue. But he is tenant in tail after possibility of issue extinct; which phrase not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished for ever. This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man (a) Litt. s. 32. [and his wife, and the heirs of their two bodies begotten, and they are divorced, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance which was once vested in them (b). The estate is of an amphibious nature, partaking partly of an estate tail, and partly of an estate for life. For, besides the name of tenant in tail, the tenant is so far in the condition of a tenant in tail, properly so called, as to be dispunishable for waste (c); and he formerly enjoyed some other of the privileges of a tenant in tail, connected with branches of the law which have now become extinct (d). On the other hand, his estate has always been considered for practical purposes as equivalent to an estate for life only; wherefore the law always permitted a tenant in tail of this description, and an ordinary tenant for life, to make mutual alienation of their estates, by that particular method of conveyance called an exchange, a conveyance applicable only in the case of estates that are equal in their nature (e). III. Tenancy by the curtesy of England is the estate for life which a man has, on the death of his wife, in the lands and tenements of which during the marriage she was seised for any estate of inheritance. And the husband is by law entitled to this estate, provided he has had issue by her born alive during the marriage, and capable of inheriting her estate (ƒ). The estate by the curtesy is said, in the Mirrour, to have been introduced by King Henry the First (g). And the reason for the law investing the husband with this (b) Co. Litt. 28 a. (In Coke's time there could have been no legal issue of such a marriage, for an alleged marriage could only be dissolved on the ground of nullity. Probably now, if there were issue begotten before the divorce, the divorce would have no effect on the estate tail.-E. J.) As to an ex (e) Ibid. 28 a. (f) Litt. ss. 35, 52 [estate, is because when a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is entitled to the profits of the lands, in order to maintain the child. As soon therefore as any child was born, the father acquired a permanent interest in the lands, becoming thereupon one of the pares curtis, and doing homage to the lord. He was thus tenant by the curtesy initiate; and this estate, being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the child. There are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of the wife (h). 1. The marriage must be a legal one. 2. The seisin of the wife must be an actual seisin, and not a bare right to possess; not a seisin in law, but a seisin in deed. Nor may it be an estate in remainder or reversion on a freehold (i). But the wife's estate may be either legal or equitable (k); and of incorporeal hereditaments, e.g., an advowson, or a common of pasture, a man may be tenant by the curtesy (1). 3. The issue must be born alive; and if the child be heard to cry, that is the strongest evidence of its being born alive, but is not the only evidence (m). The issue also must be born during the life of the mother; for if the mother dies in labour, and the Cæsarean operation is performed, the husband in this case shall not be tenant by the curtesy. Because, at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child while yet in the mother's womb; and the estate being once so vested, shall not afterwards be divested (n). The issue must also be such as is capable of inheriting the mother's (h) Co. Litt. 30 a. (i) Ibid. 29 a. (k) Sweetapple v. Bindon, (1705) 2 Vern. 536; Casborne v. Scarfe, (1737) 1 Atk. 603 (2 Wh. & T. 6). (m) Dyer, 25 b. [estate (o); and therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not entitled to be tenant by the curtesy, because such issue female can never inherit the estate in tail male. The time when the issue was born is immaterial, provided it were during the coverture; for whether it were born before or after the wife's seisin of the lands, and whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy (p). 4. The husband by the birth. of the child becomes, as was before observed, tenant by curtesy initiate, and may do many acts to charge the lands (q); but his estate is not consummate till the death of the wife, which is the fourth and last requisite to make a complete tenant by the curtesy (r).] When the wife's estates are held, as they now generally are, to the separate use of the wife, she may defeat the husband's curtesy, either by deed or will disposing of the estates (s). But in so far as they are not disposed of, the husband's claim to curtesy remains, notwithstanding the language of the Married Women's Property Act (f). [III. Tenant in dower is where the husband of a woman is seised of an estate of inheritance, and dies; in this case the wife shall have the third part of all the lands and tenements whereof he died seised (except so far as he has disposed of them by his will or encumbered them in his lifetime) to hold to herself for the term of her natural life (u). Dower is called in Latin doarium, and by Bracton and our English writers dos; but there is little resemblance between the Roman dos and the English dower, the origin (0) Litt. s. 52. (p) Co. Litt. 29 b. (q) Ibid. 30 a. (r) Ibid. (s) Cooper v. Macdonald, (1877) 7 Ch. D. 288. (t) Hope v. Hope, [1892] 2 Ch. 336. (u) Litt. s. 36. [of which is certainly to be found in local custom, native or imported. In treating of this estate, let us first consider who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how dower may be barred or prevented. 1. Who may be endowed. She must be the actual wife of the party at the time of his decease. If she be divorced, a vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos (x). But a divorce a mensâ et thoro (or, as we should now say, a judical separation,) does not destroy the dower, not even though the divorce was for adultery itself (y). But, by the Statute of Westminster the Second (1285), c. 34, if a woman voluntarily leave her husband, and live with an adulterer, she loses her dower, unless her husband is voluntarily reconciled to her. Also, by the old common law, the wife of a person attainted could not be endowed, to the intent, says Staunforde, that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may (2); though Britton gives it another turn, viz., that it is presumed the wife was privy to her husband's crime (a). But the 1 Edw. VI. (1547), c. 12, abated the rigour of the common law in this particular, and allowed the wife her dower; and the 5 & 6 Edw. VI. (1551), c. 11, s. 13, which revived the severity of the old law, revived it only against the widows of attainted traitors, and not the widows of attainted felons.] It is presumed that, since the passing of the Forfeiture Act, 1870, no widow can be deprived of her dower by the conviction of her husband for felony or treason. (x) Co. Litt. 32 a; Frampton v. Stephens, (1882) 21 Ch. D. 164. (y) Co. Litt. 32 a, 33 b. (2) P. C. bk. III. ch. 33. (a) Bk. 1. c. vi. (5) ed. Nicholls. |