her death, he surviving, be entitled to an estate as tenant by the curtesy during his life, in all the lands, tenements, and hereditaments whereof his said wife was beneficially seized in deed during the coverture, wherein the said issue was capable of inheriting, whether the said seizin was of a legal or of an equitable estate; except that when the wife shall have obtained a divorce a mensa et thoro, and shall not be living with her husband at her death he shall not be tenant by the curtesy of her lands, tenements, and hereditaments." Code of North Carolina, (1883), vol. 1, § 1838. And see the statutory enactments of the several states.

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Statement of Rule. The rights of the husband to the property of his intended wife may be intercepted by his agreement to that effect; and where, by express contract. for which the marriage is a sufficient consideration, he agrees to surrender his right to the enjoyment of the property during the coverture and his right to take as survivor, there remains nothing to which his marital rights can attach during the coverture or after the death of the wife. In such case the wife is to all intents to be regarded as a feme sole in respect to such property, and there would seem to be no necessity for any limitation over to her next of kin in the event of a failure to appoint during her lifetime. Charles v. Charles, 8 Gratt. (Va.) 486, 56 Am. Dec. 155.

2. Intention Must Be Clear. Smoot v. Lecatt, 1 Stew. (Ala.) 590, discussed in Carrington v. Richardson, 79 Ala. 101; Rochon v. Lecatt, 2 Stew. (Ala.) 429; Jones v. Brown, I Md. Ch. 191; Hooks v. Lee; 7 Ired. Eq. (42 N. Car.) 83.

Partial Exclusion of Husband. - The reservation by the wife of the rents and profits of her estate to her sole and separate use during her life, by a deed of the wife's estate executed by the husband and wife after marriage, for the purpose of directing how in the contemplated events the estate should go, does not amount to an expression of an intent on her part to exclude her husband from curtesy therein at her death. The exclusion of the husband might, if the intent to exclude him had been expressed, have been total, but as in this case the exclusion was partial only during her life, the court can have no authority to restrain him from the enjoyment of his general right by the curtesy in the equitable estate in fee of his wife. Tillinghast z. Coggeshall, 7 R. I. 383.

Question for the Jury. A marriage settle

ment which provides that the wife's property and its proceeds shall" never" be subject to the control nor the contracts of the husband seems to intend his exclusion after the death of the wife, as well as during her life; but it may be submitted to a jury, to be considered in the light of the circumstances which surrounded the parties at the time of the marriage. Mason v. Deese, 30 Ga. 308.

3. Defeated by Joining in Wife's Conveyance. Meacham v. Bunting, 156 Ill. 586, 47 Am. St. Rep. 239; Stewart v. Ross, 50 Miss. 776; Haines v. Ellis, 24 Pa. St. 253; Campbell v. McBee, 92 Va. 68. See also Houck v. Ritter, 76 Pa. St. 280; Shippen's Appeal, So Pa. St. 391.

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Joinder in a Mortgage. The signing by the husband of the mortgage by his wife on her separate land bars his right to claim an estate by the curtesy as against the mortgagee and his assigns. Hayden v. Peirce, 165 Mass. 359.

Joinder in a Will. The joinder of the husband in a will of lands executed by his wife in Pennsylvania, when her power of disposition is unqualified, can mean nothing else but that he consents and agrees to the disposition therein contained, and if it is an immediate disposition, it must mean a release of his curtesy or it means nothing. McBride's Estate, 81 Pa. St. 305.

Defective Conveyance. In Houck v. Ritter, 76 Pa. St. 280, distinguishing Johnson v. Fritz, 44 Pa. St. 449, it was held that when the husband did not give his consent in the manner and form required by the statute to a deed made by his wife for real estate which she owned, and when the husband did not join in said deed, he could recover the land as tenant by the curtesy after the death of the wife.

Conveyance Defective as to Wife Binding as to the Husband. A conveyance under a power of attorney by husband and wife, of all the right, title, and interest of the husband and wife in land, will pass the estate by curtesy of the husband, and the children of the wife cannot sue for the land after the death of the wife in the husband's lifetime, however defective the conveyance was as to their mother. Jackson v. Hodges, 2 Tenn. Ch. 276. See also Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Central Bank v. Copeland, 18 Md. 305.

1. Disposition by Wife. Cooper v. Macdonald, 7 Ch. Div. 300; Neely v. Lancaster, 47 Ark. 175, 58 Am. Rep. 752; Hampton v. Cook, (Ark. 1897) 42 S. W. Rep. 535; Pool v. Blakie, 53 Ill. 495: Chapman v. Price, 83 Va. 392; Hutchings v. Commercial Bank, 91 Va. 68; Kiracofe v. Kiracofe, 93 Va. 591; Wylie v. Frampton, 17 Ont. Rep. 515. See also Stewart v. Ross, 50 Miss. 776; Mack v. Roch, 13 Daly (N. Y.) 103; Browne v. Bockover, 84 Va. 424. And see infra, this title, Abrogation and Modification by Statute.

Statutes Maryland. Curtesy as it was at the common law no longer exists in Maryland, by reason of the 45th article of the code, which provides that the wife shall hold her property for her separate use with power of devising the same as fully as if she were a feme sole, and that in the event that she dies intestate the husband shall be entitled to a life estate in her lands. Mason v. Johnson, 47 Md. 347.

Massachusetts. - Under the Gen. Stat. Mass., c. 108, $ 9, if the husband assents in writing to a will executed by his wife of her separate estate, unless such assent is qualified or limited the will is valid and effectual to pass all her real and personal estate to the extent to which the devises and bequests therein contained dispose of the property, and the will may be effectual to cut off the husband's right to hold the real estate of his wife after her death, during his own life, as tenant by the curtesy. Silsby v. Bullock, 10 Allen (Mass.) 94. New York. A woman who was married and had issue prior to the passage of the Married Women's Act (c. 200, Laws of 1848, amended by c. 375. Laws of 1849), subsequently to the passage of this act acquired certain real estate. It was held that such marriage and birth of issue did not vest in her husband a right to a tenancy by the curtesy in such real estate which the wife could not defeat by a subsequent will. Matter of Mitchell, 61 Hun (N. Y.) 372. See also Sleight v. Read, 18 Barb. (N. Y.) 159.

Pennsylvania. — Under the statutes of Pennsylvania the husband is entitled to his curtesy in the real estate of inheritance of his deceased wife when he elects to take it against her last will. But if the wife dispose of her estate by will, he must elect to take either under the will or under the law; he cannot take under both. Clarke's Appeal, 79 Pa. St. 376, citing Dickinson v. Dickinson, 61 Pa. St. 405: Rouse Estate v. Directors of Poor, 169 Pa. St. 116.

The meaning of the Pennsylvania Act of June 3, 1887, is that thereafter a married woman may execute her will in the same manner as if she were single. But this act does

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not enable a married woman to dispose of her entire estate by will, wholly ignoring any interest of her husband therein, including his right as tenant by the curtesy. Teacle's Estate, 132 Pa. St. 533.

West Virginia. - Under $ 16, c. 65, of the Code of West Virginia, the husband who has not, by agreement with his wife, accepted an estate in lieu of his curtesy will be entitled, without renouncing the will, in like manner to take both under the will and the law; that is, he may in such case take under the will without impairing his marital right to curtesy. Cunningham v. Cunningham, 30 W. Va. 599; Beirne v. Beirne. 33 W. Va. 663.

Wisconsin. In Oatman v. Goodrich, 15 Wis. 589, it was decided that under the statute of Wisconsin tenancy by the curtesy was subjected entirely to the will of the wife, and that if she conveyed or devised the land all possibility of tenancy was gone.

2. Co. Litt. 241 a. See also Collins v. Large, (Pa. 1885) 1 Cent. Rep. 634.

3. Common-law Doctrine of Forfeiture. - 4 Kent's Com. 34; Wells v. Thompson, 13 Ala. 793, 48 Am. Dec. 76; Robinson v. Miller, 1 B. Mon. (Ky.) 88; Koltenbrock v. Cracraft, 36 Ohio St. 584.

Applicable Only to Feoffments with Livery of Seizin. "But it is claimed that by this conveyance by Dudley of the fee, when he only had a freehold for life, subject to the contingency of his wife surviving him, and by putting Broadwell in possession, he forfeited his estate, and that the possession by Broadwell was a disseizin, and worked a forfeiture of his particular estate, so that a right of entry at once vested in the wife, or if this was not so it vested in the heirs at her death. Such was the law of England in feudal times, where a tenant for life made a feoffment. This was based upon the feudal notion that by so doing he had renounced the feudal connection between him and his lord, and the estate in re-mainder or reversion having been divested by the wrongful transfer to a stranger by livery of seizin, the remainderman or reversioner might at once enter. But this rule only applied to feoffments with livery of seizin which amounted to a disseizin of the estate in remainder or reversion; but this rule did not pertain where the conveyance was by bargain and sale, or any form of deed under the statute of uses which was not accomplished by actual transfer of possession. Though the deed was in form a fee, it did not convey any more than the grantor had to part with. As this did not disturb the seizin of the reversioner or remainderman, it did not work a forfeiture.' Koltenbrock v. Cracraft, 36 Ohio St. 584.

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Wilson, 60 Ill. 226; Lucas v. Lucas, 103 Ill. 121; Bozarth v. Largent, 128 Ill. 95; McNeer v. McNeer, 142 Ill. 388.

It has been decided that since the South Carolina Act of 1791 the husband is not entitled in that state to curtesy in the fee simple estate of his wife, but he may be entitled to curtesy in a fee conditional. Gray v. Givens, 2 Hill Eq. (S. Car.) 511; Withers v. Jenkins, 14 S. Car. 597; Gaffney v. Peeler, 21 S. Car. 55; Frost v. Frost, 21 S. Car. 501. See supra, this article, Estates to Which Incident- Determinable Estates.

In Winkler v. Winkler, 18 W. Va. 455, it was said that under chapter 65, Code of 1868 of West Virginia, the interest of the husband in his wife's real estate was reduced to a life estate in one-third of the realty of which the wife died seized.

1. Effect of Married Women's Acts-England. - Hope v. Hope, (1892) 2 Ch. 336.

Arkansas. Neelly v. Lancaster, 47 Ark. 175. 58 Am. Rep. 752; Hampton v. Cook, (Ark. 1897) 42 S. W. Rep. 535.

Michigan. White v. Zane, 10 Mich. 333. New Jersey. - Johnson v. Cummins, 16 N. J. Eq. 97; Porch v. Fries, 18 N. J. Eq. 204; Cushing v. Blake, 30 N. J. Eq. 689. See also Ross. Adams, 28 N. J. L. 160; Naylor v. Field, 29 N. J. L. 292.

New York. - Matter of Winne, 2 Lans. (N. Y.) 21, reversing 1 Lans. (N. Y.) 508, disapprov ing Billings v. Baker, 15 How. Pr. (N. Y. Supreme Ct.) 525, 28 Barb. (N. Y.) 343; Beamish v. Hoyt, 2 Robt. (N. Y.) 307; Young v. Langbein, 7 Hun (N. Y.) 151; Arrowsmith v. Arrowsmith. 8 Hun (N. Y.) 606; Leach v. Leach, 21 Hun (N. Y.) 381; Matter of Mitchell, 61 Hun (N. Y.) 372; Mack v. Roch, 13 Daly (N. Y.) 103; Clark v. Clark, 24 Barb. (N. Y.) 581; Hurd v. Cass, 9 Barb. (N. Y.) 366; Lansing v. Gulick, 26 How. Pr. (N. Y. Supreme Ct.) 250; Jaycox v. Collins, 26 How. Pr. (N. Y. Supreme Ct.) 496; Hatfield v. Sneden, 54 N. Y. 280; Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 361.

North Carolina. - Long v. Graeber, 64 N. Car. 431; McCaskill v. McCormac, 99 N. Car. 548. See also Houston v. Brown, 7 Jones L. (52 N. Car.) 162.

Virginia. - Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740. Wisconsin.

- Kingsley v. Smith, 14 Wis. 360; Oatman v. Goodrich, 15 Wis. 589. And see generally the codes and statutes of the several states. See also the title SEPARATE PROPERTY OF MARRIED WOMEN.

Alabama - Money, the Proceeds of Wife's Realty. At common law the husband acquired by the marriage a life estate in the wife's lands, as tenant by the curtesy, after issue born, and this was subject to the payment of his debts; and if the land was sold by them and thus converted into personalty, the money became his absolutely when collected. But where such a sale and conversion of the wife's lands has been made since the passage of the several statutes securing to married women their separate estates, the money becomes a part of the wife's statutory separate estate, although the lands were acquired by her during the marriage and before the passage of those laws. Brevard v. Jones, 50 Ala. 221.

2. Abrogation of Curtesy Initiate. Tong v. Marvin, 15 Mich. 60; Porch v. Fries, 18 N. J. Eq. 204; Walker v. Long, 109 N. Car. 510; Hershizer v. Florence, 39. Ohio St. 516. See also Hill v. Chambers, 30 Mich. 422; Brown v. Clark, 44 Mich. 309. See the statutes of the several states.

Mississippi. The estate by the curtesy initiate was not abolished in Mississippi until the adoption of the Code of 1880. Hill v. Nash, 73 Miss. 849. But by previous legislation it has been converted from a vested into a contingent estate. Stewart v. Ross, 50 Miss. 776.

3. Staples v. Brown, 13 Allen (Mass.) 64; Hayden v. Peirce, 165 Mass. 359; Sharpless v. West Chester, 1 Grant's Cas. (Pa.) 257.

4. Thurber v. Townsend, 22 N. Y. 517; Albany County Sav. Bank v. McCarty, 149 N. Y. 71.

5. Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740.

The Virginia Act of 1876-77 does not destroy curtesy initiate, but adds another contingency alienation by the wife in her lifetime. Browne v. Bockover. 84 Va. 424.