"estate tail at law, be an effectual disposition or consent under this act in a court of law." And also, "That any device, shift, or contrivance, by which it "shall be attempted to control the protector from giving his con"sent, or to prevent him in any way from using his absolute discretion in regard to his consent, and also any agreement "entered into by the protector to withhold his consent, shall be void; and that the protector shall not be deemed a trustee in respect of his power of consent; and a court of equity shall "not control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust?." And also, "That the rules of equity in relation to dealings and "transactions between the donee of a power and any object of the power in whose favour the same may be exercised, shall "not be held to apply to dealings and transactions between the "protector of a settlement and a tenant in tail under the same "settlement, upon the occasion of the protector giving his con"sent to a disposition by a tenant in tail under this act3." II. Disposition of estates tail in lands of copyhold tenure, of which the tenant has the legal, or equitable, estate in his own right. -By the 50th section it is enacted, "That all the previous clauses "in this act, so far as circumstances and the different tenures "will admit, shall apply to lands held by copy of court-roll, except that a disposition of any such lands under this act by a "tenant in tail thereof, whose estate shall be an estate at law, "shall be made by surrender, and except that a disposition of any such lands under this act by a tenant in tail thereof, whose "estate shall be merely an estate in equity, may be made either "by surrender or by a deed as hereinafter provided, and except so far as such clauses are otherwise altered or varied by the "clauses hereinafter contained." 66 The disposition of a tenant in tail of copyholds, whose estate shall be an estate at law, is to be by surrender, and where it shall be merely an estate in equity it may be either by surrender or deed*. Sect. 50. The protector may consent either by deed or parol; in the former case, the deed must, either at or before the time when the surrender shall be made, be executed by the protector, and produced to the lord of the manor, his steward, or deputy steward; and on the production of it the lord, his steward, or deputy steward, shall indorse thereon an acknowledgment that it was produced 1 Sect. 51. Sect. 52. * Sect. 53. 4 Sect. 54. Sect. 55, 56, 57, 58, 59. 6 Sect. 60. 'Sect. 61. within the time limited, and cause the deed, with the indorsement, to be entered on the court rolls of the manor, and, after the deed shall have been so entered, shall indorse thereon a memorandum signed by him of such entry1; if the consent be by parol, it must be made by the protector to the person taking the surrender; and if the surrender be made out of court, it shall be stated in the memorandum of such surrender, that such consent had been given, and the memorandum shall be signed by the protector; and the lord of the manor, his steward, or deputy steward, shall cause the memorandum with such statement to be entered on the court rolls; but if the surrender be made in court, then he shall cause an entry of such surrender, containing a statement that such consent had been given, to be made on the court rolls 2. With respect to an equitable tenant in tail of copyholds, he may dispose of them by deed in the same manner as if they had been freehold. The deed must be entered on the rolls of the manor. If there be a protector, and he consent by a separate deed, it must be executed on or before the day on which such disposition was made by the tenant in tail, and entered also on the court rolls; such deed of disposition to be void against a subsequent purchaser for valuable consideration, who gets his deed of disposition first entered3. No inrolment is necessary other than by entry on the court rolls 4. III. Disposition of estates tail under a fiat in bankruptcy. The result of the enactments on this subject appears to amount to no more than this,-that the commissioner under the fiat shall be in exactly the same situation as to obtaining the consent of the protector, and have the same power of disposition, as the tenant in tail had at the time of issuing the fiat, or shall acquire at any time during the interval between the issuing of the fiat, and the obtaining his certificate5, except that in all cases he must convey by deed 6. There is also this peculiarity, that if the disposition of the commissioner should, by reason of the protector refusing to consent, pass only a base fee, then, if at any time during the continuance of this base fee, there should cease to be a protector, the base fee shall forthwith be enlarged to the same estate as would have passed by the disposition of the commissioner if there had at that time been no protector7; and by the following section, the same privilege is extended to base fees created by the sale of bankrupt's lands under the 6 Geo. 4, and the 1 & 2 Will. 4, or either of them. Subject, however, to the powers given to the commissioners,to the estate vested in the assignees, and to the rights of the creditors, the tenant in tail shall have the same powers of disposition under this act as if he had not become bankrupt1. IV. Disposition of estates tail in lands to be purchased out of a subsisting money fund, or money to be produced by the sale of other lands. Where the produce of lands to be sold, whether freehold or leasehold, or of any other tenure except copyhold, is to be laid out in lands to be settled, the lands so to be sold shall be treated as the lands to be purchased, and be considered subject to the same limitations as the lands to be purchased would, if actually purchased and settled, be liable to; and if they be of copyhold tenure, shall be treated as if the lands to be purchased were directed to be copyhold, and were actually purchased and settled, and be respectively disentailable accordingly. Money to be laid out in the purchase of lands to be settled, shall be treated as if the lands to be purchased were directed to be freehold, and were actually purchased and settled, and may accordingly be disentailed; but in the case of leaseholds and money, the disposition shall be effected by an assignment by deed, to be enrolled in Chancery within six calendar months2. 1 Sect. 65. * Sect. 70, 71; In re Smythe, 3 My. & Kee. 249. SECT. 7.-OF CURTESY. Of what estate the wife must be seised to entitle her husband to curtesy, 254.-Legal incidents of the estate by curtesy, 254. Curtesy is an estate for life, which, by marriage, the husband acquires in such lands or tenements of his wife, as she was seised of in fee simple or fee tail, upon having issue of her born alive, which may, by possibility, inherit the estate by descent from her. To entitle the husband to curtesy, there must be issue born alive during the marriage, capable of inheriting the estate from the mother; and at some period during the marriage, the wife must be seised of the entire inheritance. Of what estate the wife must be seised to entitle her husband to curtesy.]-Either she or her husband must be actually seised of the estate; a seisin in law will not do, except where the nature of the property will not admit of a seisin in fact, as in the case of an 'Co. Litt. 29. a. advowson, of which no vacancy has occurred during the coverture1. In cases where the wife by the same instrument takes an estate for life and the reversion in fee, but contingent freehold remainders are interposed, as the legal effect of these limitations appears to be that the life estate will merge in the inheritance for every purpose except to destroy the contingent interests2, if the contingencies never happen, the wife's seisin of the fee not, being disturbed, curtesy attaches; but if they do, then the consolidated estates will separate, and the wife be considered as actually seised ab initio of an estate for life only to which curtesy does not attach3. If a term for years only be interposed between the estate for life limited to the wife and the fee vested in her, or if she be seised of the inheritance subject to a term for years, the husband will nevertheless be entitled to curtesy, for the possession of the lessee is the possession of the wife. "Wiscott's Ca. 2 Rep. 60 b; Purefoy v. Rogers, 2 Saund. 387. 3 Boothby v. Vernon, 9 Mod. 147. 42 Roll. Abr. 90, pl. 50. 5 Sterling v. 6 Morgan v. Morgan, 5 Madd. 408. There is no curtesy of lands held in joint tenancy, but there is of lands held in co-parcenary or in common4; and as the possession of one tenant in common is the possession of all the rest, the seisin of one will be sufficient to entitle the husband of another, a married woman, to be tenant by the curtesy 5. The husband is entitled to curtesy, as well out of the trust as the legal estates of his wife: and where the estate is limited in trust for the separate use of the wife for her life, with the equitable remainder or reversion to her in fee, the two estates coalesce so as to vest in her an estate of inheritance in possession, and entitle the husband to curtesy6. Legal incidents of estates by curtesy.]-An estate by curtesy being an estate for life, it is in general subject to the same incidents as other estates for life. Tenant by curtesy is entitled, therefore, to emblements; is not dispunishable of waste; and is bound to keep down the interest of incumbrances; matters which will be treated in detail in the next chapter. The husband takes the estate, subject, of course, to all the charges and incumbrances which would affect it in the wife's possession, if she were living. Like tenant in dower, he is entitled, in equity, to the removal of a satisfied term of years, which would prejudice his estate in a court of law; and it makes no difference whether such term be outstanding or assigned to attend the inheritance1. Any circumstance, which Snell v. Clay, would have defeated or determined the estate of the wife if living, 2 Vern. 324. will, of course, put an end to the estate by curtesy. SECT. 8.-OF Dower. Of the seisin in the husband necessary to support the widow's title to dower, 255.—Assignment of dower by metes and bounds, 258.-Means of preventing dower from attaching, and of defeating it when it has attached, 259.-Jointures, 261.Equitable jointures, 266.—Legal incidents of jointure, 270.Equitable satisfaction of dower, 272.-Limitations in bar of dower, 276.-Of the statute for the amendment of the law of dower, 278. By marriage the wife becomes entitled to an estate for life upon surviving her husband, in a third part of all estates of inheritance, of which he was solely seised at any time during coverture, and which her issue by this marriage might by possibility have inherited. The interest of the wife is termed her DOWER. A widow in the lifetime of her husband has a title to dower after his decease; and before it is set out by metes and bounds she has a right of dower; but after it has been set out by the sheriff by metes and bounds she has an estate of dower. To the consummation of her title to dower, three things are essential a legal and canonical marriage, seisin, and the death of her husband2. The first and last of these circumstances are gene-Litt. s. 36. rally very easy of proof, and can rarely occasion any question; but the second gives rise to some considerations peculiar to this subject, and which it will be proper shortly to advert to. With respect to the seisin necessary to ground the widow's title to dower, it is not essential, as in the case of curtesy, that the husband should have been actually seised of the freehold and inheritance. It is sufficient if he had a seisin at law at any time during the marriage; and the reason assigned is 3, that, as the wife has Co. Litt. 31. a. no power to compel her husband to take actual possession or seisin, she might be defrauded of her dower by his neglect or misconduct, if a seisin at law had not been held sufficient to sup port her right to dower4. The husband must be solely seised, and Perk. 366. therefore, she is dowable of an estate held by him in co-parcenary, or in common; but not of an estate held in joint tenancy and part |