Curtesy in United Kingdom

Concept of Curtesy

The following is an old definition of Curtesy [1], a term which has several meanings:1. Where a man marries a woman seized of an estate of an inheritance (that is, of land and tenements in fee-simple or fee-tail), and has by her issue, born alive, capable of inheriting the estate, on her death he holds the land for life as tenant by the curtesy of England. An estate by the curtesy is the interest to which the husband is entitled upon the death of the wife, in the lands or tenements of which she was seized in possession, in fee- simple or in tail, during their coverture, provided they had lawful issue, born alive which might by possibility inherit the estate as heir to the wife. When a man marries a woman, seized at any time during the coverture of an estate of inheritance, in severalty, in coparcenary, or in common, and has 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 life-time of the husband, he holds the land during her life ” by the curtesy of England.” Under old common law, as soon as a child was born the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy ” initiate.” He could do many acts to charge the land, but his estate was not ” consummate” till the death of the wife. The requisites are: a legal marriage; an actual seizin or possession in the wife – wherefore no curtesy can be had in a remainder or a reversion; issue born alive, during the life of the mother, capable of Inheriting the estate; and, the death of the wife. Adopted as a common-law estate in all of the older States, though somewhat modified in some of them. The right is expressly created by statute in Delaware, Kentucky, Maine, Massachusetts, Minnesota, New Hampshire, Rhode Island, Vermont, and Wisconsin. In Alabama, Connecticut, Illinois, Maryland, Mississippi, Missouri, New Jersey, North Carolina, Tennessee, and Virginia it is recognized by the courts as an existing estate. In California it is not allowed; realty being there held in common, and the survivor talking one-half in severalty. In Georgia the husband takes an absolute estate in all the property. In Kansas he takes one-half absolutely, upon her decease without a will; and if without issue, he takes all absolutely. In Louisiana their relation to their property does not admit of curtesy. In Nebraska the estate is given, unless she had issue by a former husband who would take the estate. In New York it would seem that she may defeat a right by conveyance. In Ohio, Oregon, and Pennsylvania issue is not necessary. In South Carolina he takes his share in fee. In Texas any property is the common property of both. In Dakota, Indiana, Michigan, and Nevada the estate seems to be abolished. In many of the States curtesy is given, by statute, in equitable estates of which the wife is seized. The right extends to equities of redemption, contingent uses, and moneys directed to be laid out in lands for the benefit of the wife. In the absence of fraud, a husband who is embarrassed may convey his curtesy to a trustee for the benefit of his wife and children, for a consideration valuable in equity. Compare Dower

Alternative Meaning

A voluntary act of kindness. An act of kindness toward another person, of the free will of the doer, without previous request or promise of reward, has sometimes been called a ” voluntary curtesy.” From such act the law implies no promise for remuneration. If it were otherwise, one man might impose a legal obligation upon another against his will. Hence the phrases ” a voluntary curtesy will not support an assumpsit,” but that ” a cm-tesy moved by a previous request will.” See Protest.

Resources

Notes and References

1. Meaning of Curtesy provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)