Curtesy

Curtesy (a variant of “courtesy,” q.v.), in law, the life interest which a husband has in certain events in the lands of which his wife was in her lifetime actually seised for an estate of inheritance. As to the historical origin of the custom and the meaning of the word there is considerable doubt. It has been said to be an interest peculiar to England and to Scotland, hence called the “curtesy of England” and the “curtesy of Scotland”; but this is erroneous, for it is found also in Germany and France. The Mirroir des Justices ascribes it to Henry I. K. E. Digby (Hist. Real Prop. chap. iii.) says that it is connected with curia, and has reference either to the attendance of the husband as tenant of the lands at the lord’s court, or to mean simply that the husband is acknowledged tenant by the courts of England (tenens per legem Angliae). The requisites necessary to make tenancy by the curtesy are: (1) a legal marriage; (2) an estate in possession of which the wife must have been actually seised; (3) issue born alive and during the mother’s existence, though it is immaterial whether the issue live or die, or whether it is born before or after the wife’s seisin; in the case of gavelkind lands the husband has a right to curtesy, whether there is issue born or not; but the curtesy extends only to a moiety of the wife’s lands and ceases if the husband marries again. The issue must have been capable of inheriting as heir to the wife, e.g. if a wife were seised of lands in tail male the birth of a daughter would not entitle the husband to a tenancy by curtesy; (4) the title to the tenancy vests only on the death of the wife. The Married Women’s Property Act 1882 has not affected the right of curtesy so far as relates to the wife’s undisposed-of realty (Hope v. Hope, 1892, 2 Ch. 336), and the Settled Land Act 1884, s. 8, provides that for the purposes of the Settled Land Act 1882 the estate of a tenant by curtesy is to be deemed an estate arising under a settlement made by the wife.

See Pollock and Maitland, Hist. Eng. Law; K. E. Digby, Hist. Real Prop.; Goodeve, Real Property.

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