Curtesy

23 April 2014

No. That's not a typo. It's a principle of common law we encounter in historical documents more often than we realize. The problem is: we seldom see that label on the situations that invoke it. Not recognizing it when it happens leads to missed clues and misinterpretations of all sorts.

Under common law, which most of the U.S. (Louisiana excepted) inherited from its English roots, curtesy is the estate to which a widower was entitled at the death of a wife who had brought property into the marriage. If the couple had "lawful issue born alive" who "might have been capable of inheriting" from their mother, then her property would fall to the husband/father for the duration of his life. Only at his death, would the estate be divided among her heirs. Illogically (to us today), that principle held even if that "lawful issue born alive" had predeceased its mother. But, of course, much of the past was dealt with differently than our modern sense of how things ought to be.

Source: Henry Campbell Black, Black's Law Dictionary, 4th ed. (St. Paul, Minn.: West Publishing Co., 1951), 459. (The 4th edition of Black is recommended because more recent editions omit many older terms researchers find in historical records.)

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Submitted byJadeon Wed, 04/23/2014 - 20:10

This is an excellent pointer to a factor in land holdings that can require constructing very detailed timelines as well as very careful locating and logging of land, tax assessment and court records.

In one of my lines Caleb died testate in 1834, bequeathing his land to his wife until her death, when the land was to fall to Caleb's daughter Eliza.

Wife Sally died intestate in 1851.  Some of Eliza's children did not wait until her respective death to convey their interests in the land.

Eliza died intestate in 1857, followed by more children's deeds conveying their prospective interests in the land.  Eliza's husband lived three more years, holding the land by curtesy, which prevented actual transfer of titles.

In 1853 the County Court rather extraordinarily ordered the land surveyed into lots so that the grantees of the post-1851 deeds would know what they were prospectively purchasing!

After the husband's death another series of heirs' deeds conveyed actual lots as set out in 1853 (Eliza had a lot of children).  Everyone appears to have assumed that Eliza would not dispose of the land by will.  Possibly Caleb's will was understood to have entailed the land to Eliza's heirs (no Court proceeding on this point has been found).  Her husband did make a will, but it disposed of his own property and did not refer to Eliza's inheritance.

If one located only a few of the deeds or misinterpreted them, or located but one or two of the several Court proceedings relating to various aspects of this property, or did not retrieve the pertinent wills, the picture would be very confusing.