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other matter restraint cause or thing whatsoever to alter
change charge revoke make void lessen or determine the
same estate And that for aud notwithstanding any such
act matter or thing as aforesaid] he the said A. B. now hath That the ven-
in himself good right full power and lawful and absolute ^.j^j^^ to toq-
authority to grant and confirm the said messuage or tenement vey.
lauds hereditaments and premises hereinbefore granted or
intended so to be with their appurtenances unto the said
C. D. and his heirs to the uses and in manner aforesaid and
according to the true intent and meaning of these presents
And that the same messuage or tenement lands hereditaments For quiet cn-
and premises with the appurtenances shall and lawfully may ]oyment.
accordingly from time to time and at all times hereafter be
held and enjoyed and the rents issues and profits thereof
received and taken by the said C. D. his appointees heirs
and assigns to and for his and their own absolute use and
benefit without any lawful let suit trouble denial hin-
drance eviction ejection molestation disturbance or inter-
ruption whatsoever of from or by the said A. B. or any
person or persons lawfully or equitably claiming or to

(e) See ante, pp. 80, 81. (/) See ante, p. 433.



508



APPENDIX.



For freedom
from incum-
brances.



For further
assurance.



claim by from through under or in trust for him And
that {g) free and clear and freely and clearly acquitted
exonerated and discharged or otherwise by him the said
A. B. his heirs executors or administrators well and suf-
ficiently saved defended kept harmless and indemnified of
from and against all and all manner of former and other
[gifts grants bargains sales leases mortgages jointures
dowers and all right and title of dower uses trusts wills
entails statutes merchant and of the staple recognizances
judgments extents executions annuities legacies payments
rents and arrears of rent forfeitures re-entries cause and
causes of forfeiture and re-entry and of from and against all
and singular other] estates rights titles charges and incum-
brances whatsoever had made done committed executed or
willingly suffered by him the said A. B. or any person or
persons lawfully or equitably claiming or to claim by from
through under or in trust for him And moreover that he
the said A. B. and his heirs and all and every persons and
person having or lawfully claiming or who shall or may
have or lawfully claim any estate right title or interest
whatsoever at law or in equity in to or out of the said
messuage or tenement lands hereditaments and premises
hereinbefore granted or intended so to be with their appur-
tenances by from through under or in trust for him or them
shall and will from time to time and at all times hereafter
upon every reasonable request and at the costs and charges
of the said C. D. his appointees heirs and assigns make do
and execute or cause or procure to be made done and exe-
cuted all and every or any such further and other lawful
and reasonable acts deeds things grants conveyances and
assurances in the law whatsoever for further better more
perfectly and effectually granting conveying and assuring
the said messuage or tenement lands hereditaments and pre-
mises hereinbefore granted or intended so to be with their
appurtenances unto the said C. D. and his heirs to the uses
and in manner aforesaid and according to the true intent
and meaning of these presents as by him the said C. D. his
appointees heirs or assigns or his or their counsel in the law



(/;) The word that is here a pronoun.



APPENDIX. 509

shall or may be reasonably advised or devised and required
[so that no siich further assurance or assurances contain
or imply any further or any other warranty or covenant
than against the person or persons who shall make and
execute the same and his her or their heirs executors and
administrators acts and deeds only and so that the person or
persons who shall be required to make and execute any
such further assurance or assurances be not compelled or
compellable for making or doing thereof to go or travel from
his her or their dwelling or respective dwellings or usual
place or places of abode or residence] In Witness, &c.

On the back is endorsed the attestation and further receipt
as follows : —

Signed sealed and delivered by the within-named A. B.
C. D. and Y. Z. in the presence of

John Doe of London Gent.
Richard Roe Clerk to Mr. Doe.

Received the day and year first within written,
of and from the within-named C. D. the sum i
of One Thousand Pounds being the consider- > £1000.
ation within mentioned to be paid by him to '
me.

(Signed) A. B.
Witness John Doe

Richard Roe.



( 510 )



APPENDIX (E).

Referred to p. 227, n. {a).



On the decease of a woman entitled by descent to an estate
in fee simple, is her husband, having had issue by her, en-
titled, according to the present law, to an estate for life, by
the curtesy of England, in the whole or any part of her
share ? (a)

In order to answer this question satisfactorily, it will be
necessary, first, to examine into the principles of the ancient
law, and then to apply those principles, when ascertained, to
the law as at present existing. Unfortunately the authori-
ties whence the principles of the old law ought to be derived
do not appear to be quite consistent with one another ; and
the consequence is, that some uncertainty seems unavoidably
to hang over the question above propounded. Let us, how-
ever, weigh carefully the opposing authorities, and endea-
vour to ascertain on which side the scale preponderates.

Littleton, "not the name of the author only, but of the
law itself," thus defines curtesy : " Tenant by the curtesie of
England is where a man taketh a wife seised in fee simple or
in fee tail general, or seised as heir in tail especial, and hath
issue by the same wife, male or female, born alive, albeit the
issue after dieth or liveth, yet if the wife dies, the husband
shall hold the land during his life by the law of England.
And he is called tenant by the curtesie of England, because
this is used in no other realme, but in England only"(i).
And, in a subsequent section, he adds, "Memorandum, that,
in every case where a man taketh a wife seised of such an

(a) The substance of the fol- appeared in the "Jurist" news-
lowhig observations has ahxady ]iaper for March 14, 184G.

{h) Litt. s. 35.



APPENDIX. 51 1

estate of tenements, &c., as the issue which lie hath by his
wife may by possibiUty inherit the same tenements of such
an estate as the wife hatli, as heir to the tvife; in tliis case,
after the decease of tlie wife, lie shall have the same tene-
ments by the curtesie of England, hut otherwise not " (c).
"Memorandum," says Lord Coke, in his Commentary (rf),
" this word doth ever betoken some excellent point of learn-
ing." Again, " As heir to the wife. This doth imply a
secret of law ; for, except the wife be actually seised, the
heir shall not (as hath been said) make himself heir to the
wife ; and this is the reason, that a man shall not be tenant
by the curtesie of a seisin in law." Here, we find it asserted
by Littleton, that the husband shall not be tenant by the
curtesy, unless he has had issue by his wife capable of in-
heriting the land as her heir ; and this is explained by Lord
Coke to be such issue as would have traced their descent
from the wife, as the stock of descent, according to the
maxim, " seisina facit stipitem." Unless an actual seisin
had been obtained by the wife, she could not have been the
stock of descent ; for the descent of a fee simple was traced
from the person last actually seised; "and this is the reason,"
says Lord Coke, " that a man shall not be tenant by the cur-
tesy of a mere seisin in law." The same rule, with the same
reason for it, will also be found in Paine' s case (e), where it
is said, " And when Littleton saith, as heir to the tcife, these
words are very material ; for that is the true reason that
a man shall not be tenant by the curtesy of a seisin in law ;
for, in such case, the issue ought to make himself heir to him
who was last actually seised." The same doctrine again
appears in Blackstone (y). " And this seems to be the
principal reason why the husband cannot be tenant by the
curtesy of any lands of which the wife was not actually
seised ; because, in order to entitle himself to such estate, he
must have begotten issue that may be heir to the wife ; but
no one, by the standing rule of law, can be heir to the an-
cestor of any land, whereof the ancestor was not actually
seised ; and, therefore, as the husband had never begotten



(c) Litt. s. 52. (e) 8 Rep. 3G a.

(rfj Co. Litt. 40 a. (/) 2 Black. Comm. 128.



512 APPEXDIX.

any issue that can be heir to those lands, he shall not be
tenant of them by the curtesy. And hence," continues Black-
stone in his usual laudatory strain, " we may observe, with
how much nicety and consideration the old rules of law were
framed, and how closely they are connected and interwoven
together, supporting, illustrating and demonsti'ating one an-
other." Here we have, indeed, a formidable array of autho-
rities, all to the point, that, in order to entitle the husband
to his curtesy, his wife must have been the stock from whom
descent should have been traced to her issue ; for the prin-
cipal and true reason that there could not be any curtesy of
a seisin in law is stated to be, that the issue could not, in
such a case, make himself heir to the wife, because his
descent was then requu'ed to be traced from the person last
actually seised.

Let us, then, endeavour to apply this principle to the pre-
sent law. The act for the amendment of the law of inherit-
ance (y) enacts (A), that, in every case, descent shall be traced
from the purchaser. On the decease of a woman entitled by
descent, the descent of her share is, therefore, to be now
traced, not from herself, but from her ancestor, the pur-
chaser from whom she inherited. With respect to the per-
sons to become entitled, as heir to the purchaser on this
descent, if the woman be a coparcener, the question arises,
which has already been discussed (i), whether the surviving
sister equally with the issue of the deceased, or whether such
issue solely, are now entitled to inherit ? And the conclu-
sion at which we arrived was, that the issue solely succeeded
to their mother's share. But, whether this be so or not,
nothing is clearer than that, on the decease of a woman en-
titled by descent, the persons who next inherit take as heir
to the purchaser, and not to her ; for, from the purchaser
alone can descent now be traced ; and the mere circumstance
of having obtained an actual seisin does not now make the
heir the stock of descent. How, then, can her husband be
entitled to hold her lands as tenant by the curtesy ? If

07) 3 & 4 Will. IV. c. 106. (i) Appendix (B), ante, p. 467.

(A; Sect. 2.



APPENDIX. 513

tenancy by the curtesy was allo-wed of those lands only of which
the wife had obtained actual seisin, because it was a neces-
sary condition of curtesy that the wife should be the stock of
descent, and because an actual seisin alone made the wife the
stock of descent, how can the husband obtain his cui'tesy in
any case where the stock of descent is confessedly not the
wife, but the wife's ancestor ? Amongst all the recent alter-
ations of the law, the doctrine of curtesy has been left un-
touched ; there seems, therefore, to be no means of deter-
mining any question respecting it, but by applying the old
principles to the new enactments, by which, indirectly, it
may be affected. So far, then, as at present appears, it
seems a fair and proper deduction from the authorities, that,
whenever a woman has become entitled to lands by descent,
her husband cannot claim his curtesy, because the descent of
such lands, on her decease, is not to be traced from her.

But, by carrying our investigations a little further, we
may be disposed to doubt, if not to deny, that such is the
law ; not that the conclusion drawn is unwarranted by the
authorities, but the authorities themselves may, perhaps, be
found to be erroneous. Let us now compare the law of
curtesy of an estate tail with the law of curtesy of an estate
in fee simple.

In the section of Littleton, which we have already
quoted ( I), it is laid down, that, if a man taketh a wife seised
as heir in tail especial, and hath issue by her, born alive, he
shall, on her decease, be tenant by the curtesy. And on this
Lord Coke makes the following commentary : " And here
Littleton intendeth a seisin in deed, if it may be attained
unto. As if a man dieth seised of lands in fee simple or fee
tail general, and these lands descend to his daughter, and
she taketh a husband and hath issue, and dieth before any
entry, the husband shall not be tenant by the curtesy, and
yet, in this case, she had a seisin in law ; but, if she or her
husband had, during her life, entered, he should have been
tenant by the curtesy" (m). Now, it is well known that

(0 Sect. 35. (w) Co. Litt. 29 a.

K.P. L L



514 APPENDIX.

the descent of an estate tail is always traced from the pur-
chaser or original donee in tail. The actual seisin which
might be obtained by the heir to an estate tail never made
him the stock of descent. The maxim was, "Possessio
fratris de feudo simplici facit sororem esse hseredem."
Where, thei^efore, a woman who had been seised as heir or
coparcener in tail died, leaving issue, such issue made them-
selves heir not to her, but to her ancestor, the purchaser or
donee ; and whether the mother did or did not obtain actual
seisin was, in this respect, totally immaterial. When actual
seisin was obtained, the issue still made themselves heir to
the purchaser only, and yet the husband was entitled to his
curtesy. When actual seisin was not obtained, the issue
were heirs to the purchaser as before; but the husband lost
his curtesy. In the case of an estate tail, therefore, it is
quite clear that the question of curtesy or no curtesy
depended entirely on the husband's obtaining for his wife an
actual seisin, and had nothing to do with the circumstance
of the wife's being or not being the stock of descent. The
reason, therefore, before mentioned given by Lord Coke, and
repeated by Blackstone, cannot apply to an estate tail. An
actual seisin could not have been required in order to make
the wife the stock of descent, because the descent could
not, under any circumstances, be traced from her, but must
have been traced from the original donee to the heir of his
hody per formam doni.

Again, if we look to the law respecting curtesy in incor-
poreal hereditaments, we shall find that the reason above
given is inapplicable; for the husband, on having issue born,
was entitled to his curtesy out of an advowson and a rent,
although no actual seisin had been obtained, in the wife's
lifetime, by receipt of the rent or presentation to the advow-
son (n). And yet, in order to make the wife the stock of
descent as to such hereditaments, it was necessary that an
actual seisin should be obtained by her (o). The husband,
therefoi-e, was entitled to his curtesy where the descent to

(«) Watk. Descents, 39 (47, {o) Watk. Descents, 60 (67,

4th ed.) 4th ed.)



APPENDIX. 515

tlie issue was traced from the ancestor of his wife, as well as
where traced from the wife herself. In this case also, the
right to curtesy was, accordingly, independent of the wife's
being or not being the stock from which the descent was to
be traced.

We are driven, therefore, to search for another and more
satisfactory reason why an actual seisin should have been
required to be obtained by the wife, in order to entitle her
husband to his curtesy out of her lands ; and such a reason
is furnished by Lord Coke himself, and also by Blackstone.
Lord Coke says (p), "■ Where lands or tenements descend to
the husband, before entry he hath but a seisin in law, and
yet the wife shall be endowed, albeit it be not reduced to an
actual possession, for it lieth not in the power of the wife to
bring it to an actual seisin, as the husband 7nay do of his
wife's land when he is to be tenant by curtesy, which is
worthy the observation." It would seem from this, therefore,
that the reason why an actual seisin was required to entitle
the husband to his curtesy was, that his wife may not suffer
by his neglect to take possession of her lands ; and, in order
to induce him to do so, the law allowed him curtesy of all
lands of which an actual seisin had been obtained, but
refused him his curtesy out of such lands as he had taken
no pains to obtain possession of. This reason also is adopted
by Blackstone from Coke : " A seisin in law of the husband
will be as effectual as a seisin in deed, in order to render the
wife dowable : for it is not in the wife's power to bring the
husband's title to an actual seisin, as it is in the husband's
power to do with regard to the wife's lands ; which is one
reason why he shall not be tenant by the curtesy but of
such lands whereof the wife, or he himself in her right,
was actually seised in deed " {q). The more we investigate
the rules and principles of the ancient law, the greater will
appear the probability that this reason was indeed the true
one. In the troublous times of old, an actual seisin was not
always easily acquired. The doctrine of continual claim
shows that peril was not unfrequently incurred in entering

{p) Co. Litt. 31 a. (-?) 2 Black. Com. 131.

L L 2



516 APPENDIX.

on lands for the sake of asserting a title ; for, in order to
obtain an actual seisin, any person entitled, if unable to
approach the premises, was bound to come as near as he
dare (r). And " it is to be observed," says Lord Coke,
" that every doubt or fear is not sufficient, for it must con-
cern the safety of the person of a man, and not his houses or
goods ; for if he fear the burning of his houses or the taking
away or spoiling his goods, this is not sufficient" (s). That
actual seisin should be obtained was obviously most desir-
able, and nothing could be more natural or reasonable than
that the husband should have no curtesy where he had failed
to obtain it. Perkins seems to think that this was the
reason of the rule ; for iu his Profitable Book he answers an
objection to it, founded on an extreme case. " But if pos-
session in law of lands or tenements in fee descend unto a
married woman, which lauds are in the county of York, and
the husband and his wife are dwelling in the county of
Essex, and the wife dieth within one day after the descent,
so as the husband could not enter during the coverture,
for the shortness of the time, yet he shall not be tenant by
the curtesy, &c. ; and yet, according to common pretence,
there is no default in the husband. But it may be said
that the husband of the woman, before the death of the
ancestor of the woman, might have spoken unto a man
dwelling near unto the place where the lands lay, to enter
for the woman, as in her right, immediately after the death
of her ancestor," &c. {t). This reason for the rule is also
quite consistent with the circumstance that the husband
was entitled to his curtesy out of incorporeal heredita-
ments, notwithstanding his fjiilure to obtain an actual seisin.
For if the advowson were not void, or the rent did not
become payable during the wife's life, it was obviously
impossible for the husband to present to the one or receive
the other; and it would have been unreasonable that he
should suffijr for not doing an impossibility, the maxim
being " impotentia excusat legem." This is the reason,
indeed, usually given to explain this circumstance ; and it

(r) Litt. ss. 419, 421. {t) Perk. 470.

(s) Co. Litt. 253 b.



APPENDIX. 517

will be found both in Lord Coke {u) and Blackstone (x).
This reason, however, is plainly at variance with that
mentioned in the former part of this paper, and adduced
by them to explain the necessity of an actual seisin, in
order to entitle the husband to his curtesy out of lands in
fee simple.

There still remains, however, the section of Littleton, to
which we have before referred (y), as an apparent authority
on the other side. Littleton expressly says, that when the
issue may, by possibility, inherit, of such an estate as the
wife hath, as heir to the wife, the husband shall have his
curtesy, but otherwise not; and we have seen that, accord-
ing to Lord Coke's interpretation, to inherit as heir to the
wife, means here to inherit fro77i the ivife as the stock of
descent. But the legitimate mode of interpreting an author
certainly is to attend to the context, and to notice in what
sense he himself uses the phrase in question on other occa-
sions. If now we tui'n to the very next section of Littleton,
we shall find the very same jihi'ase made use of in a manner,
which clearly shows that Littleton did not mean, by inherit-
ing as heir to a person, inheriting from that person as the
stock of descent. For, after having thus laid down the laAv
as to curtesy, Littleton continues : " And, also, in every case
where a woman taketh a husband seised of such an estate
in tenements, &c., so as, by possibility, it may hai:)pen that
the wife may have issue by her husband, and that the same
issue may, by possibility, inherit the same tenements of such
an estate as the husband hath, as heir to the husbarid, of
such tenements she shall have her dower, and otherwise
nof (z). Now, nothing is clearer than that a wife was en-
titled to dower out of the lands of which her husband had
only seisin in law («); and nothing, also, is clearer than that
a seisin in law only was insufficient to make the husband
the stock of descent : for, for this purpose, an actual seisin
was requisite, according to the rule " seisina facit stipitem."
In this case, therefore, it is obvious that Littleton could not

(m) Co. Litt. 29 a. (z) Litt. s. 53.

(a?) 2 Black. Com. 127. (a) Watk. Descents, 32 (42,

(y) Sect. 52. 4th ed.)



518 APPENDIX.

mean to say that the husband must have been made the
stock of descent, by virtue of having obtained an actual
seisin : for that would have been to contradict the plainest
rules of law. What, then, was his meaning ? The subse-
quent part of the same section aifords an explanation : "For,
if tenements be given to a man and to the heirs which he
shall beget of the body of his wife, in this case the wife
hath nothing in the tenements, and the husband hath an
estate tail as donee in special tail. Yet, if the husband die
without issue, the same wife shall be endowed of the same
tenements, because the issue, which she by possibility might
have had by the same husband, might have inherited the
same tenements. But, if the wife dieth leaving her husband,
and after the husband taketh another wife and dieth, his
second wife shall not be endowed in this case, /or the reason
aforesaid^ This example shows what was Littleton's true
meaning. He was not thinking, either in this section or the
one next before it, of the husband or wife being the stock of
descent, instead of some earlier ancestor. He was laying
down a general rule, applicable to dower as well as to
curtesy ; namely, that if the issue that might have been
born in the one case, or that were born in the other, of the
surviving parent, could not, by possibility, inherit the estate
of their deceased parent, by right of representation of such
parent, then the surviving parent was not entitled to dower
in the one case, or to curtesy in the other. It is plain
that, in the example just adduced, the issue of the hus-
band by his second marriage could not possibly inherit
his estate, which was given to him and the heii's of his
body by his first wife ; the second wife, therefore, was
excluded from dower out of this estate. And, in the
parallel case of a gift to a woman and the heirs of her
body by her first husband, it is indisputable that, for a
precisely similar reason, her second husband could not
claim his curtesy on having issue by her; for such issue
could not possibly inherit their mother's estate. All that
Littleton then intended to state with respect to curtesy,
was the rule laid down by the Statute de Donis (6), which

(J) 13 Edw. I. c. 1.



APPENDIX. 519

provides that, where any person gives lands to a man and
his wife and the heirs of their bodies, or where any person
gives land in frankmarriage, the second husband of any such
woman shall not have any thing in the land so given, after
the death of his wife, by the law of England, nor shall



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