which a man may hold by curtesy, because it is impossible to have had actual seisin of it, and impotentia excusat legem, or impotency excuseth the law. And though, in strictness of law, there cannot be curtesy of trusts, yet the courts of equity have allowed curtesy both of trusts and other interests, which, though in law mere rights and titles, are deemed estates in equity. However, a wife, in point of benefit, may have a trust of inheritance which may be so declared as to prevent curtesy; as by directing the profits during the wife's life to be paid to her separate use1(14). If the wife be an idiot, the husband shall not be tenant by the k 2 Black. Com. 127. Co. Litt. 29. note 6. 13th edit. (14) This position was laid down by Lord Hardwicke in Herle v. Greenbank, 3 Atk. 715. S. C. 1 Ves. sen. 298. but that case stands unsupported, and is not to be reconciled to his lordship's general doctrine in Roberts v. Dixwell, 1 Atk. 606., where he says a devise to the separate use of the wife would not bar the husband, because there was a sort of seisin in the wife. And it seems now to be settled, that where the husband is only partially, but not wholly excluded from the enjoyment of the wife's property, his right as tenant by the curtesy is not affected. Thus where by a settlement made previous to marriage, the estate of the wife was conveyed to trustees upon trust for the sole and separate use of the wife during the coverture, with power to her to appoint the fee by deed or will, and for want of appointment in trust for the wife, her heirs and assigns, the Vice-Chancellor held, that although a court of equity would, according to the intention of the settlement, have restrained the husband from all interference with the rents and profits during the life of the wife, yet there being no further exclusion expressed in the settlement, that court could not restrain him from the enjoyment of his general right as tenant by the curtesy in her equitable inheritance. Morgan v. Morgan, 5 Madd. 408. Rut where the husband is wholly excluded, as if the direction be, that upon the death of the wife the inheritance shall descend to her heir, and that the husband shall not be entitled to be tenant by the curtesy, such a provision will be valid, and will destroy the marital claim. Bennett v. Davis, 2 P. Wms. 316. curtesy of her lands; for the king, by prerogative, is intitled to them, the instant she herself has any title m.— -3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake"; crying indeed is the strongest evidence of its being born alive, but it is not the only evidence (15). The issue must also 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 intitled, as having had no issue born, but the land descended to the child, while he was yet in his mother's womb: and the estate, being once so vested, shall not afterwards be taken from him P. The issue that must be so born alive must also be capable of inheriting the mother's estate 9. Wherefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby intitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male, and if a woman be delivered of a monster which hath not human shape, he is not capable of inheriting; yet if he hath human shape, though deformed in body, he is capable. The time when the issue was born is immaterial, provided it is born during the coverture; for whether it be born before or after the wife's seisin of the lands, 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 .-4. By the death of the wife after issue had (as before observed) the husband becomes tenant by the curtesy, and not before. Yet by the birth of a child he becomes tenant by the curtesy initiate, and may (15) See Co. Lit. 29. b. where it is said, that to enable a husband to be tenant by the curtesy, it is sufficient if the issue be born alive, though it be not heard to cry, for peradventure may be born dumb. it do many acts to charge the lands, but his estate is not consummate till the death of the wife". By becoming tenant by the curtesy, the husband is intitled to hold the estate during his life, and immediately after his death the same must inevitably go to the heir, whether he be a child or distant relation of the wife: and this the husband, as being only tenant by the curtesy, can in no wise prevent; for he cannot alien this estate for any longer term than his own life: wherefore, and for that it may so happen, the husband, on the death of the wife, may have no further benefit from the estate, of which during his wife's life he hath been intitled to the rents and profits. A tenancy by the curtesy seldom happens, except where the wife is seised in fee-simple at any time during her coverture; for she cannot devise this estate by will, as being restrained by the statute of 34 & 35 Hen. VIII. c. 5., neither will the law permit her to convey it to her husband or any other person whatever. For all deeds executed and acts done by her during her coverture are void; except it be a fine, or like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary. Yet by a fine, in which she and her husband must join, the estate may be conveyed and assured to any person or persons, for such uses and purposes as the husband and wife shall think fit. So likewise may such estate whereof the wife is seised in fee-tail general, if there is no remainder or reversion expectant thereon, for barring of which a recovery must be suffered, as shewn in the appendix to this work. SECTION III. How the Law disposes of a Husband's real Estate; or the Law concerning a Tenancy in Dower. THE wife is intitled by law to be endowed of one-third part of all such lands and tenements, of which her husband was seised in fee-simple or fee-tail, at any time during the coverture or marriage; to hold the same during the term * Ibid. 444. u 2 Black. Com. 128. of her natural life v. But that she might be intitled thereto, she must be the wife of the party at the time of his decease; for if she be divorced a vinculo matrimonii, that is, from the band of matrimony, she shall not be endowed; for ubi nullum matrimonium ibi nulla dos, that is, where there is no marriage there is no dower. But a divorce a mensa et thoro, or from bed and board only, doth not destroy the dower; not even if it is for adultery itself, by the common law". But by the statute 13 Edw. I. c. 34., if a woman elopes from her husband and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her (16). And the widows of traitors, or persons attainted of treason, are barred of their dower (except in the case of certain modern treasons relating to the coin a); but not the widows of felons b. An alien (one born out of the king's allegiance) cannot be endowed, unless she be queen consort; for no alien is capable of holding lands. And that the wife may be endowed, she must be above nine years old at her husband's death, otherwise she shall not be endowed. y Co. Litt. 31. The husband being legally seised in fee-simple or feetail, during the coverture, entitles the wife to dower; but if he before marriage puts the legal estate out of him, or after marriage purchases an estate and takes a conveyance in his own name and trustee's, the wife will be excluded. And the wife cannot be entitled to dower out of an estate which at the time of her marriage was subject to a mortgage in fee. Co. Litt. 208. note 1. 13th edit. Nor against a purchaser of the inheritance, who has got an assignment of a term created previous to her right of dower. Amb. Rep. 6. z Co. Litt. 32. a Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. b 2 Black. 131. (16) In this respect a distinction subsists between a right to dower, and a claim of jointure; for although adultery is made a forfeiture of dower by the statute, yet that act does not extend to jointures; and the elopement or adultery of a wife will not defeat her of a jointure provided for her under marriage articles. Buchanan v. Buchanan, 1 Ball & Beat. 204. Seagrave v. Seagrave, 13 Ves. 433. Nor will such misconduct on the part of the wife preclude her from calling for a specific performance of marriage articles entered into in her favour. Buchanan v. Buchanan. Supra. The wife being entitled by law to be endowed of onethird part of all such lands and tenements of which her husband was seised in fee-simple or fee-tail, at any time during the coverture or marriage, shall hold such one-third part during the term of her natural life; and that whether she hath issue by her husband or not, provided any issue which she might have had might by possibility have been heir. Therefore if a man seised in fee-simple hath a son by his first wife, and after marries a second wife, she shall be endowed. of his lands; for her issue might by possibility have been heir on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body begotten on Jane his wife: though Jane may be endowed of those lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed; for no issue that she could have could by any possibility inherit them. A seisin in law (that is, a right to possess) of the husband, will be as effectual as a seisin in deed, which is an actual possession f, im 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 8. Yet the seisin of the husband for a transitory instant only, when the same act which gives him the estate conveys it also out of him again (as where by a fine land is granted to a man, and he immediately renders it back by the same fine), such a seisin will not entitle the wife to dower h; for the land was merely in transitu, and never rested in the husband. But if the land abides in him for a single moment, it seems that the wife shall be endowed thereof (17). This doctrine was extended very far by a jury in Wales, where the father and son d Co. Litt. 31. e 2 Black. Com. 131. f Ibid. 127. & Co. Litt. 31. (17) In a late case, in which it appeared that a husband, before Lord Eldon's act, borrowed an estate for the purpose of suffering a recovery, in order to acquire the ownership of |