When it’s a tenant by curtesy
When Caroline Adams died in Illinois on the 7th of June 1884, she left behind a husband, Silas.1
She left behind two young sons, Henry S. and George C. Adams.2
And she left behind one small piece of land.
In Vermont.
And therein lies the tale.
Because the one thing Caroline didn’t leave behind was a will.
So her estate — such as it was, a small piece of land in Middlebury, Addison County, Vermont — was intestate, and the law would determine who got what.
The land was only worth a small amount. The administrator, Rufus Wainwright, got court permission to sell it in December 1886 because, he explained, “all the heirs and persons interested reside without the state.”3
The land sold for the whopping sum of $60, and some $14.75 of that sum had been eaten up by various costs and fees, leaving $45.25 to be distributed to Caroline’s heirs.4
So… who exactly were those heirs? Who was to get what?
Vermont law at the time provided that real estate should descend in equal shares to the children of the deceased.5
Silas had been named guardian of his two sons by the court in their home county of Grundy, Illinois.6
So clearly, under the law, Henry and George would be the principal beneficiaries of their mother’s estate.
But what about Silas?
And for that, read on to what the court had to say when it approved the final settlement of Caroline’s estate:
It is therefore ordered and decreed that said Adm(inistrator) pay over and deliver the said balance, to wit the sum of $45.25 to the said Silas G. Adams, guardian of the said minor children of deceased, for his own use, as tenant by curtesy, that is, to have the income and use therefore during the term of his natural life, and at his decease, the principal to be distributed to said minor children, or their guardian, and to hold the said fund in trust for them …7
Tenant by curtesy?
What the heck was that?
Curtesy, by definition, is the “estate to which by common law a man is entitled, on the death of his wife, in the lands or tenements of which she was seised in possession in fee-simple or in tail during their coverture, provided they have had lawful issue born alive which might have been capable of inheriting the estate. It is a freehold estate for the term of his natural life.”8
In plain English, it’s the husband’s automatic right to a life estate in all his wife’s lands if, and only if, she had borne him a live child. Here, since Caroline had borne two sons to Silas, Silas had that life estate — the right to benefit from the land for his lifetime.
Vermont law at the time recognized a widower’s curtesy right in his wife’s lands,9 just as it recognized a widow’s right to dower — a life estate in one-third of her husband’s lands.10
So Silas had a life estate in the land, but had no real use for it since he was in Illinois, and the land was in Vermont. That’s why he went along with having the land sold. And what he got was the functional equivalent of a life estate, but in the money rather than in the land: he could use it to produce income during his lifetime, but on his death the cash had to go to his sons.
So he was a tenant by curtesy in the money from the land, while not being a tenant on the land at all.
SOURCES
- Addison County, Vermont, Probate Court, Addison District; Estate of Caroline Adams, Application for letters of administration, 28 October 1886; digital images, “Vermont, Addison County and District Probate Files, 1845-1915,” FamilySearch (https://familysearch.org : accessed 24 June 2015). ↩
- Ibid., final decree, entered 18 June 1887. ↩
- Ibid., Application for License to Sell Real Estate, filed 29 Nov 1886. ↩
- Ibid., Administrator’s account and settlement, filed 9 May 1887. ↩
- See §2230, Revised Laws of Vermont, 1880 (Rutland, Vt. : State Printers, 1881), 452; digital images, Google Books (http://books.google.com : accessed 24 June 2015). ↩
- Addison County, Vermont, Probate Court, Addison District; Estate of Caroline Adams, Grundy County, Illinois, County Court, Letters of Guardianship, issued 15 June 1887; digital images, “Vermont, Addison County and District Probate Files, 1845-1915,” FamilySearch (https://familysearch.org : accessed 24 June 2015). ↩
- Ibid., final decree, entered 18 June 1887. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 311, “curtesy.” ↩
- See §2229, Revised Laws of Vermont, 1880, at 452. ↩
- See ibid., §2215, at 450. ↩
Why was the father Silas appointed Guardian of his own children?
Because they were inheriting from their mother. Guardianship until well into the 20th century focused on property, not on physical custody of the children.
Would Silas have inherited her land if there had not been children born to them?
If her children were not Silas’ children, then no. The children would have inherited it all, independent of any claim by Silas. The law at the time made the children the heirs, and a spouse inherited only if there were no children. So curtesy was the only way for him to have a right to the land.