Page:Federal Reporter, 1st Series, Volume 9.djvu/45

 30 FEDERAL REPORTER, �tary assignee, by operation of law. This is not true of the estate at any period from the moment of marriage and aeizin of the wife down to the consummation of the estate, if issue be born, by her death. �Whether, before seizin by the wife, a husband's possible curtesy in lands belonging to the wife would be assignable, in law or in equity, by treating the eonveyance as a covenant to assign, or not, certainly, from the very moment of such seizin, he beoomes a tenant by the curtesy, and that is undoubtedly the initial point at which this estate in the particular land vests in him, no matter whether it originates in the seizin or the marriage relation. And from that moment, although he may be in possession by virtue of the marital right, ox jure uxoris, as it is sometimes calied, he is also in possession by virtue of thia estate by the curtesy, if the two be separable at all. Some of the authorities say he is in by both by a kind of rcmitter, and poasibly they may in some sense be said to unite or merge into each other, though neither will destroy or absorb the other. But, whatever the distinctions may be in this regard, and however for all purposes this matter may be determined, for the purpose of giving effect to his conveyancea, and for the purpose of being subjected to his debts, it is vested in him whenever the necessary seizin of the wife occurs. If he convey, or it be assigned by operation of law after seizin, even before issue born, the estate by the curtesy passes, and his assignee holds, as he held it, subject to be devested by the failure of issue oocurring by the death of the wife without having given birth to a child born alive ; or, whether issue be born or not, by the death of the husband terminating the estate in the life-time of the wife ; and in some peculiar circumstances, perhaps, by other events. The mistake is often made of supposing that the survivorship of the wife defeats the tenancy by the curtesy. Her survival bas no such effect. His death terminates his life estate necessarily, whether it occurs before or after that of the wife. But it does not follow that this defeasible and determinable character of the estate reduces it to a bare possibil- ity, or makes it an estate called into being by the happening of a contin- gency — either that of the birth of issue or the death of the wife in the life-time of the husband. The husband bas, at best, only a life estate, and of course his death ends it, whether it happens before or after the death of the wife ; and what the books mean by saying that her death consummates this tenancy by the curtesy is that from that time on there is no marital relation f urnishing him any other right to posses- sion or ownership of her lands than that which he bas derived through this curtesy of the law. The death of the wife neither originates nor ��� �