thought inconsistent with his taking by implication the freehold also.

276.

(346.) Whether a Springing Use or Exe- Fearne, C. R. cutory Devise to the heirs of a person who takes an estate of freehold by the same instrument will commence in that person himself, has been doubted. But if there be nothing peculiar in the case to make "heirs" a word of purchase, the general rule seems applicable. And it has Fearne, C. R. even been contended, with much cogency of argument, that where the limitation to the heirs

74.

is effected by an Appointment, in exercise of a (172, 173.) Power created by the Deed or Will which gave the life estate, both instruments are for this purpose to be considered as one.

(347.) The principle of the rule has been carried so far, that where land is given to two persons for their lives, with remainder to the

beirs of him who shall die first, the heir is held Co. Litt. 378. b. to take by descent; and yet during the life of his ancestor the estate was not only contingent, but the person, whose heir should take it, unascertained.

(348.) Descent from a person seised in fee does not always confer the immediate enjoyment of the estate; it may be subject to the claims of a husband or wife of the deceased.

The husband is entitled to hold for his life, Litt. 35. 52.

as Tenant by the Curtesy of England, all the

Lands and Tenements of which he and his wife

were seised in deed (actually or virtually) in her (302, 303.) right, for an estate of inheritance; provided that

Litt. 36. 53.

he has had by her a child born alive, who either does or might inherit the same.

(349.) The Wife is entitled to receive by the Assignment (being a designation by metes and bounds where that is possible) of the heir, and to hold for her life as Tenant in Dower, one third part in value of all the lands and TeneCo. Litt. 31. b. ments (with some few exceptions) of which her husband was seised in deed or in law, at any Co. Litt. 31. a. time since the marriage, for an estate of inheritance which a child born between them (if any) might possibly inherit. By the Custom of Gavelkind she is entitled to a Moiety, but only

32. a.

Co. Litt. 33. b. during her widowhood.

Anon. 5 Bac.

(350.) The husband, from the moment of the child's birth, or of the acquisition of the proCo. Litt. 30. a; perty by the wife, (whichever last happens,) is enabled to convey, by Feoffment, an estate for his own life to another person. Before the birth of a child, he can convey a good estate for the joint lives only of himself and his wife.

Ab. 852.

Co. Litt. 32. a.

(351) The wife's right commences with the marriage, or the subsequent acquisition of property by the husband; and it is not defeated by his alienation, for she may compel the purchaser, after her husband's death, to assign her Cru. Fi. 204; dower. But she may extinguish her right by joining with her husband in levying a Fine, or Co. Litt. 31. a. suffering a Recovery. (352.) When she has received her Dower from the hands of the heir, she is considered as deriving her estate immediately from her husband, so that only a rever

Cru. Rec. 270.

sion in that part of the property has in effect descended to the heir.

(353) No right of Curtesy or Dower attaches upon an estate held in Joint-tenancy; for the right of survivorship is preferred to all Co. Litt. 185. a. charges and incumbrances which do not amount

to at least a partial alienation of the share. Nor

if the husband, being a Joint-tenant, convey Co. Litt. 31. b. his share to another, and thus at once destroy the right of survivorship, and deprive himself of the property, will his wife be entitled to Dower.

32. a,

2 Bac. Ab. 364;

(354) No right of Curtesy or Dower attaches upon a Remainder or Reversion expec- Co. Litt. 29. a. tant upon a particular estate of freehold. And even if A. be tenant for life, with a vested remainder to B. for his life, with remainder to A. in fee, and A. die before B., the husband or wife of A. will not have Curtesy or Dower, because A. was never seised of the Freehold and Inheritance as one estate.

(355.) By the Common Law, Entry for a Condition broken defeats the conditional estate, and all interest derived out of it; it therefore defeats the right of Curtesy and Dower. (356.) But where the wife or husband has an estate in fee, subject to be divested by a Shifting Use, or Executory Devise, it has been a disputed question, whether these rights may not be enforced after the event, and notwithstanding the divesting and destruction of the estate upon which they attached. This point

Fearne, C. R.

346.

(23.) Co. Litt. 202. a;

1 Ro. Ab. 474;

or 5 Vin. 315.

Butl. Co. Litt.

241. a. n. 4;

11. ; 2 Bing. 447.

See 10 V. J.

266.

has been decided in the case of Buckworth v. Thirkell in favour of Curtesy; and recently, in 3 B. & P. 652. that of Moody v. King, in favour of Dower. The executory devise did not take effect till the death of the wife in the first of those cases, and of the husband in the second. But in the case 5 B. & A. 561. of Ray v. Pung, where the husband had a general Power to appoint the uses of the land, and, subject to that Power, was seised in fee, it was held, that by appointing to a purchaser in fee, he defeated his wife's right of dower. The estate in this case was divested in the lifetime of the husband, and the appointee took not the husband's estate but a new fee simple. In the two former cases there was also a new fee simple, but subject to Dower or Curtesy, as an excrescence out of or continuance of the old fee, which would be still subsisting if its former owner were alive. Such, and so subtle, appears to be the distinction, on the ground of positive law, between these decisions; and when we consider that in one of them the husband was allowed by his own act to defeat the encumbrance which he had voluntarily contracted, and that the claim of Dower, according to the old maxims of law is entitled to peculiar favour, there seems to be some need of a rational ground for the distinction; which perhaps may be found in an inclination of the Courts, in the present age, to support all contrivances by which a person who has invested money in the purchase of land may be enabled

Bac. Tr. 331.

at a future time to resell it without the expense of a conveyance by Fine.

(357.) Before the Statute of Uses, the Use or Equitable Estate was subject neither to Curtesy nor to Dower. Hence Settlements upon marriage became necessary; of which the most simple form was to make the husband and wife Joint-tenants, that the whole might go to the survivor. This seems to be the origin of the word Jointure, as applicable to the provi- 2 Black. Comm. sion made for a woman upon marriage in the 137. event of her husband's death; though it has been more usual, as being more secure, to make this provision by way of remainder, expectant upon a life estate in the husband. The Statute of Uses would have given an unfair advantage to many of the married women of that day, by vesting legal estates in their husbands, out of which they might have claimed Dower, in addition to their Jointures, if it had not provided for such cases in its sixth and three following sections. (358.) The effect of these Co, Litt. 36. b clauses (which have a prospective and perpetual operation) is, that if before marriage lands or tenements be conveyed by the husband, or by his procurement, in such manner as to give the wife a legal estate for her life at least, to be enjoyed immediately after her husband's death, she is barred of all claim to Dower out of the remaining tenements of her husband. (359.) But this is on condition that she be not afterwards evicted, or lawfully ousted of her