184 N.Y. 74 | NY | 1906
This action is brought by a husband to recover possession of certain premises, which he claims as tenant by the curtesy. The defense is that the wife was not actually seized of the premises during her lifetime and that, therefore, the estate in curtesy did not attach.
By the deed which conveyed the property to the wife there was conveyed to another party a life estate therein. It does not appear that the wife was ever in actual possession of the property; since the life tenant survived her, and it is assumed, as I understand the case, that the wife was never in actual possession of the property. The wife died before the termination of the life estate, and hence the only interest that she ever had in the land was an estate in remainder.
Curtesy is a common-law estate and recognized by the laws of this state. It gives to the husband a life estate in the lands of which his wife died seized. In Washburn on Real Property (6th ed. §§ 328, 335) it is said that "the husband's curtesy is in many respects but a continuation of the estate of the wife," and "if the estate of the wife be one in reversion or remainder, subject to a prior freehold estate in another, her constructive seizin of such reversion will not entitle her husband to curtesy, unless the prior freehold determine during coverture." In this case the life estate referred to continued until long after the death of the plaintiff's wife and the latter was never in possession. The other conditions upon which the estate in curtesy depends existed, that is, the marriage, the birth of a child and the death of the wife.
The plaintiff's complaint was dismissed at the trial and the judgment has been affirmed at the Appellate Division. We think that the appeal cannot be sustained, since actual seizin in the wife is necessary in order to vest the husband with the estate in curtesy.
In Ferguson v. Tweedy (
In Carr v. Anderson (
The judgment should be affirmed, with costs.
CULLEN, Ch. J., HAIGHT, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Judgment affirmed.