life of another. A tenant for life may alien his estate, but his grantee then becomes a tenant for the life of his grantor. This results from the principle that no man can grant a greater estate than he possesses; and as he has an estate only for his own life, his grantee becomes the tenant pur auter vie.

As the incidents of a tenancy for life are substantially the same in all cases, we shall postpone an enumeration of them to the close of this section.

2. Of the estate for the life of another, usually denominated an estate pur auter vie. This estate is at common law an estate of freehold. It may be created by express words of limitation, or by the alienation by a tenant for his own life. The incidents of this estate are the same as those of other life estates, and will be hereafter noticed. By the revised statutes, in the chapter in relation to wills and testaments, and of the distribution of the estates of deceased persons, and of the rights, powers and duties of executors and administrators, estates held by the deceased for the life of another person are declared to be assets, and directed to go to the exccutors or administrators to be applied and distributed as part of the personal estate of the testator or intestate, and to be included in the inventory thereof. (2 R. S. 82.) An estate during the life of a third person, whether limited to heirs or not, is deemed a freehold only during the life of the grantee or devisee, but after his death, a chattel real. (1 R. S. 722, § 5. Roseboom v. Van Vechten, 5 Denio, 414.)

A lease granted by the tenant pur auter vie, will cease on the death of the cestui que vie, and not on his own death.

At common law, where lands were given to A. for the life of B., if A. or his assignee happened to die in B.'s lifetime, the estate belonged to the first person who took possession, whoever he might be; and such person was called an occupant. But if the gift were to A. and his heirs for the life of B., or if A. in the former case had assigned his estate to another person and his heirs, this title by occupancy was precluded. The heir indeed who succeeded to such an estate was commonly called a special occupant. The statute 29 Charles 2, ch. 3, § 12, declares those estates pur auter vie to which the heir does not succeed as special occupant to be assets. If the heir took as special occupant then they became assets in his hands. Our former statute concerning wills (1 R. L. 365, § 4) made no such

exception, but allowed the estate to be devisable by last will and testament; and if no such devise thereof was made, the same or so much thereof as was not devised was directed to go to the executor or administrator, of the party who had the estate, to be applied and distributed as part of the personal estate. Such was the law prior to the revised statutes of 1830; and by the latter, the estate was made assets in the hands of the executor or administrator, whether devised by the testator or not. (2 R. S. 82, § 6, subd. 1. Roseboom v. Van Vechten, supra.)

3. The third species of estate for life is an estate by the curtesy. It is thus described by Littleton, § 35: “When a man taketh a wife seised in fee simple, or in fee tail general, or seised as heir in special tail 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." The conversion in this state of estates in fee tail into estates in fee simple, modifies, but does not impair, the above definition. Although this estate has not been, like the estate in dower, declared by statute, it has been repeatedly recognized by the courts of this state as an existing estate. (Jackson v. Johnson, 5 Cowen, 74-95. Dunscomb v. Dunscomb's Executors, 1 John. Ch. R. 508. Jackson v. Sellick, 8 John. Rep. 262. Jackson v. Gilchrist, 15 id. 89. Adair v. Lott, 3 Hill, 182. Ellsworth v. Cook, 8 Paige, 643. Matter of Cregier, 1 Barb. Ch. R. 598. Schermerhorn v. Miller, 2 Cowen, 439. Jackson v. Mancius, 2 Wend, 357. 1 R. S. 754, § 20.)

The supreme court at an early day recognized Littleton's description of the estate, by which it appears that four things belong to the estate, viz. marriage, seisin of the wife, issue and death of the wife. They admit that it is not necessary that all these should concur together at one and the same time; and therefore if a man taketh a woman seised of lands in fee and is disseised, and then have issue, and the wife die, he shall enter and hold by the curtesy. So if he hath issue which dieth before the descent. (Jackson v. Johnson, 5 Cowen, 95.)

The marriage must be a legal, valid marriage, between parties able to enter into the contract. The seisin required by the English books, must be a seisin in deed. (1 Inst. 29 a.) But the courts of this state have held that when a feme covert is the owner of wild and uncultivated land, she is considered in law, as in fact, possessed so

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as to enable her husband to become a tenant by the curtesy. An actual entry or pedis possessio by the wife or husband during the coverture, is not requisite to the completion of a tenancy by the curtesy. (Jackson v. Sellick, 8 John. 262. Same v. Gilchrist, 15 id. 89.) The time when the seisin commences, whether upon or after issue had, is immaterial; for if a man marries a woman seised in fee, is disseised, and then has issue, and the wife dies, he shall enter and hold by the curtesy. So if he has issue which dies before the descent of the lands on the wife. (1 Inst. 30 a.) The issue must be born alive in the lifetime of the wife; and therefore if she dies in childbed, and the issue is taken out of the womb by the Cæsarean operation, the husband will not be entitled to curtesy. (Per Walworth, Ch., Marsellis v. Thalhimer, 2 Paige, 35. 1 Cruise Dig. 152, Greenl. ed.) The last circumstance required to give a title to curtesy is the death of the wife, by which the estate of the husband becomes consummate. (1 Inst. 30, a.)

With regard to the persons capable of acquiring this estate, it is sufficient to observe that all persons capable of taking a freehold estate may be tenants by the curtesy.

There is some conflict in the decisions of our courts with regard to the effect which the statutes relative to the estates of married women have on the curtesy of the husband, and therefore a few remarks will be added. The act of 1848, ch. 200, p. 307, enacts that "the real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues and profits thereof shall not be subject to the disposal of her husband nor be liable for his debts, and shall continue her sole and separate property as if she were a single woman." The second section applies the same principle to females who were married at the time of the passing of the act. The third section enacts that any

as amended by the law of 1849, ch. 375, p. 528, married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use and convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried; and the same shall not be subject to the disposal of the husband nor be liable for his debts.

A learned judge of the supreme court of the first district, in 1854, intimated at special term that the effect of the foregoing

statutes was to deprive the husband of curtesy in the land of the wife. (Benedict v. Seymour, 11 How. 179.) This intimation is elaborately reasoned out by another learned judge (Potter) in Billings v. Baker, (28 Barb. 343,) decided at general term in the 4th district in 1859, and a majority of that court held that the effect of those statutes was entirely to abrogate the existence of prospective tenancy by the curtesy; and in short that every quality and incident that are necessary to constitute a tenancy by the curtesy are destroyed by the provisions of these acts. (S. C. 15 How. 525.) But the doctrine of this case was strongly questioned by the learned judge (Sutherland) who delivered the opinion of the general term of the supreme court in the 1st district, in the same year, in Vallance v. Bausch, (28 Barb. 633, 642.) And the supreme court in special term in the 6th district in 1850, held expressly that the husband's estate by the curtesy was not taken away by those statutes in the lands of which the wife died seised; and this doctrine was concurred in by a learned justice in the 8th district at special term, in 1857, in Clark v. Clark, (24 Barb. 581.) The court, speaking of cases where the wife took the estate during coverture, thought that if she failed to convey or devise the land, and thus died seised, the husband would be entitled to curtesy as before the passage of those laws. If the wife was seised of the land before coverture, the statutes afford no ground to suppose that the husband's right to curtesy is impaired. It is only with respect to lands which she acquires during coverture by inheritance, gift, grant or devise, that there is any color for supposing that the husband's right to curtesy is taken away. The weight of authority at present is against the position that curtesy is taken away by those statutes. We cannot speak decisively upon the subject until the question shall have been definitively settled by the court of appeals. The protection of the rights of married women does not require that the right of the husband to curtesy-an estate which is only consummated by the death of the wife-should be abrogated. Had the legislature intended a change so radical, they would have, doubtless, expressed it in unequivocal language. The claim to curtesy, like the claim to dower by the wife, springs out of the positive institutions of society, which may, indeed, be changed or destroyed in both cases according to the dictates of justice and public policy. The legislature might well secure the real estate of the wife during her lifetime, whether owned by her before marriage, or derived by her afterwards by inheritance, gift or

devise, from the control of her husband during her life. They have done it only in a qualified manner, in regard to property acquired after the marriage, but have been silent as to its effect upon the common law rights of the husband, on her death. Those rights remain in full vigor.

The statute relative to titles to real property by descent directs the mode of its disposition on the death intestate of the owner, and but for the 20th section would abrogate both the estates of dower and curtesy. (1 R. S. 744.) But the acts of 1848 and 1849, relative to the estates of married women, have reference to her property during her life. They unquestionably lessen the common law marital rights of the husband, during the existence of the marriage, but they do not impair his rights upon her death, if she fails to exercise the powers with which she is clothed.

It is the seisin of the wife, in her lifetime, and not that of the husband, that gives the right to curtesy. (Pond v. Bergh, 10 Paige, 140.) The foregoing decisions were made before the act of 1860, chap. 90, the effect of which upon dower and curtesy has not yet been adjudicated.

4. The remaining life estate of which we shall treat in this section is dower. This estate is derived from the law, and is that which a widow acquires in a certain portion of her husband's real property, after his death, for her support and maintenance. In this state the general principles, with respect to this right, are set forth in the revised statutes. It is there enacted that a widow shall be endowed of the third part of all the lands whereof her husband was seised of an estate of inheritance, at any time during the marriage. (1 R. S. 740, § 1.) This is substantially as the estate is described by Littleton, § 36. In most of the United States the right of the wife to dower is the same in substance as stated by Littleton. In some of the states, the right to dower is restricted to those lands of which the husband died seised. Under such a limitation of the right it is unnecessary for the wife to join in the conveyance of her husband on sales of his real estate in order to extinguish her claim. The inchoate right to dower is, in this state, an incumbrance upon the estate of her husband, which is usually removed by her uniting with him in the deed, and acknowledging the execution thereof, on a private examination before a proper officer.

With regard to the person entitled to dower, it has been seen that