The opinion of the court was delivered by
Simpson, C. J.
0'n November 6th, 1867, the defendant made a deed of trust. [See provisions in the “ case.”] Mary Jenkins, the wife of defendant, died in lifetime of defendant, and before Mary, the daughter, .and disappears entirely from the case. Mary, the daughter, married the plaintiff in January, 1869. Mary, the daughter, died in November, 1869. She left a male child at her death. This child died in March, 1870, leaving the plaintiff, his father, surviving, who now claims an estate of curtesy under the deed.
Is the plaintiff (appellant) entitled to an estate, by the curtesy, in the real property mentioned in the pleadings? is the main question in this case.
An estate by the curtesy, Or as it is more commonly called, by curtesy, is defined by Mr. Washburne as succinctly and as clearly, perhaps, as by any other writer upon this intricate subject. He says that “ it is the estate to which a husband is entitled, upon the death of his wife, in lands and tenements of which she was seized in fee simple or in fee tail during coverture, provided they have 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.” Book I., oh. VI., p. 148. Pie says, further, that “ equity, following the law, holds that where the wife is cestui que trust in fee simple or fee tail, the husband is entitled to curtesy in the trust estate in the same manner as in the legal estate.” Watts v. Ball, 1 P. Wms. 109; Co. Lit. 29 a, n. 165.
This estate is of very ancient origin, and it has prevailed from an early period, with well-defined qualities and incidents, not only in England but in other countries. It came to us with the •common law, and before the act of 1791, it no doubt would have been enforced here as to all the estates to which it was an inci■dent, as a part of the common law. . -
The act of 1791, however, in abolishing primogeniture and [608]*608providing for the distribution of intestate estates, enacted certain provisions in conflict with this right as to fee simple estates. It declares in the sixth section “ that on the death of any married woman, the husband shall be entitled to the same share of her real estate as is herein given to the widow out of the estate of the husband.” Upon the construction of this act it has been held that the husband is not entitled to his curtesy in the fee simple estates of his wife, or, at least, that he is put to his election. Gray v. Gwens, 1 Hill’s Ch. 511. This is upon the ground that the interest which the husband takes under the act is more important than the curtesy, and, besides, the two could not be enjoyed together. They are in conflict, and the curtesy has practically given way since the passage of this act. If, then, the wife of the appellant here had taken under the deed an absolute fee simple, either at law or in equity, we would have but little difficulty in deciding this question. In fact, we suppose the question would not have been made.
The estate of the wife, however, is not a fee simple. As we construe the deed it is a fee conditional at common law — that estate out of which, in England, the statute de donis constructed fee tails; but the statute de donis has never been adopted in this state, therefore the common law estate of fee conditional stands untouched with us, and it has been often recognized by our courts.
Chancellor Wardlaw, in Wright v. Herron, said: “Whatever diversity there may be among judges of this state concerning the implication of a fee conditional, and as to some of the incidents of the estate, the existence of the estate itself, with most of its attributes, according to the common law, has been recognized by many decisions in our own courts.” He refers to numerous cases in a note. 5 Rich. JEq. 449.
There is no doubt, either, as to the fact that this estate may exist in equity as a trust or use as well as in law, and, when thus existing in equity, is subject to all the rules of descent and otherwise, and is accompanied with most of the incidents and attributes applicable to such estates at law.
We think that in this case the wife of Samuel Jenkins took a life estate under the deed, with an equitable fee conditional in [609]*609remainder to his daughter Mary (afterwards the wife of the appellant,) with a power in her to dispose by will of the whole estate in the event that she never married or died childless. This is • the plain language of the deed, and it needs the application of no abstruse rules of interpretation or construction to reach that conclusion.
The deed in the first instance declares the estate to the wife of the grantor for and during the term of her natural ’ life. This gave her a life estate. After her death or marriage, then to his daughter Mary and the lawful heirs of her,body. This is strictly a fee conditional at common law. But should she die, remaining unmarried or childless, then to such persons as she might appoint by will as her heirs. This conveys a power of appointment.
The full text of the deed will be seen in the “ case,” but enough is referred to here to determine the quantity of the estate given to tlhe different parties mentioned. And we do not suppose that, had this deed conveyed legal estates simply, without the intervention of a trustee, that there could have been any difference of opinion as to the estates granted, i. e., a life estate to the wife and a fee conditional in remainder to the daughter, with the power, under certain contingencies, to the daughter to appoint by will such person or persons, as she might see proper, to take after her death.
The power of appointment given to Mary did not enlarge the fee conditional to an absolute fee simple in her. This power was not an absolute power, but one which was to be exercised only upon the happening of certain contingencies. These contingencies never happened, and, therefore, the fee conditional was never defeated by the exercise of the power. Nor was it enlarged in Mary by the grant of this power, because such enlargement never takes place where the first estate is distinctly marked out and defined, such as a life estate or other estate less than a fee simple; and where.the exercise of the power is limited and restricted to the happening of contingencies, to have the effect of enlarging the first estate, it must be indefinite and the power must be absolute and unconditional. Pulliam v. Byrd, 2 Strob. Eq. 134.
The conclusion of the court is, that Mary took a fee condi[610]*610tional in equity. It is elementary that the term “heirs of the body ” are precisely the terms required to be used to describe and measure this estate, while the word “ heirs,” without qualification* ereates a fee simple.
The curtesy of the husband, as a general rule, will attach to a fee conditional in the wife, whether his estate be an estate in law or a trust in equity. This is, the general rule in England and many of the states of the Union.
In our state, in the case of Wright v. Herron, 6 Rich. Eq. 407, it was held to attach to a fee conditional at law. True, the Court of Errors failed to agree in that case; but when it was returned to the Court of Chancery three of the learned Chancellors— Whrdlaw, Johnstone and Dargan — to one, sustained this estate.
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The opinion of the court was delivered by
Simpson, C. J.
0'n November 6th, 1867, the defendant made a deed of trust. [See provisions in the “ case.”] Mary Jenkins, the wife of defendant, died in lifetime of defendant, and before Mary, the daughter, .and disappears entirely from the case. Mary, the daughter, married the plaintiff in January, 1869. Mary, the daughter, died in November, 1869. She left a male child at her death. This child died in March, 1870, leaving the plaintiff, his father, surviving, who now claims an estate of curtesy under the deed.
Is the plaintiff (appellant) entitled to an estate, by the curtesy, in the real property mentioned in the pleadings? is the main question in this case.
An estate by the curtesy, Or as it is more commonly called, by curtesy, is defined by Mr. Washburne as succinctly and as clearly, perhaps, as by any other writer upon this intricate subject. He says that “ it is the estate to which a husband is entitled, upon the death of his wife, in lands and tenements of which she was seized in fee simple or in fee tail during coverture, provided they have 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.” Book I., oh. VI., p. 148. Pie says, further, that “ equity, following the law, holds that where the wife is cestui que trust in fee simple or fee tail, the husband is entitled to curtesy in the trust estate in the same manner as in the legal estate.” Watts v. Ball, 1 P. Wms. 109; Co. Lit. 29 a, n. 165.
This estate is of very ancient origin, and it has prevailed from an early period, with well-defined qualities and incidents, not only in England but in other countries. It came to us with the •common law, and before the act of 1791, it no doubt would have been enforced here as to all the estates to which it was an inci■dent, as a part of the common law. . -
The act of 1791, however, in abolishing primogeniture and [608]*608providing for the distribution of intestate estates, enacted certain provisions in conflict with this right as to fee simple estates. It declares in the sixth section “ that on the death of any married woman, the husband shall be entitled to the same share of her real estate as is herein given to the widow out of the estate of the husband.” Upon the construction of this act it has been held that the husband is not entitled to his curtesy in the fee simple estates of his wife, or, at least, that he is put to his election. Gray v. Gwens, 1 Hill’s Ch. 511. This is upon the ground that the interest which the husband takes under the act is more important than the curtesy, and, besides, the two could not be enjoyed together. They are in conflict, and the curtesy has practically given way since the passage of this act. If, then, the wife of the appellant here had taken under the deed an absolute fee simple, either at law or in equity, we would have but little difficulty in deciding this question. In fact, we suppose the question would not have been made.
The estate of the wife, however, is not a fee simple. As we construe the deed it is a fee conditional at common law — that estate out of which, in England, the statute de donis constructed fee tails; but the statute de donis has never been adopted in this state, therefore the common law estate of fee conditional stands untouched with us, and it has been often recognized by our courts.
Chancellor Wardlaw, in Wright v. Herron, said: “Whatever diversity there may be among judges of this state concerning the implication of a fee conditional, and as to some of the incidents of the estate, the existence of the estate itself, with most of its attributes, according to the common law, has been recognized by many decisions in our own courts.” He refers to numerous cases in a note. 5 Rich. JEq. 449.
There is no doubt, either, as to the fact that this estate may exist in equity as a trust or use as well as in law, and, when thus existing in equity, is subject to all the rules of descent and otherwise, and is accompanied with most of the incidents and attributes applicable to such estates at law.
We think that in this case the wife of Samuel Jenkins took a life estate under the deed, with an equitable fee conditional in [609]*609remainder to his daughter Mary (afterwards the wife of the appellant,) with a power in her to dispose by will of the whole estate in the event that she never married or died childless. This is • the plain language of the deed, and it needs the application of no abstruse rules of interpretation or construction to reach that conclusion.
The deed in the first instance declares the estate to the wife of the grantor for and during the term of her natural ’ life. This gave her a life estate. After her death or marriage, then to his daughter Mary and the lawful heirs of her,body. This is strictly a fee conditional at common law. But should she die, remaining unmarried or childless, then to such persons as she might appoint by will as her heirs. This conveys a power of appointment.
The full text of the deed will be seen in the “ case,” but enough is referred to here to determine the quantity of the estate given to tlhe different parties mentioned. And we do not suppose that, had this deed conveyed legal estates simply, without the intervention of a trustee, that there could have been any difference of opinion as to the estates granted, i. e., a life estate to the wife and a fee conditional in remainder to the daughter, with the power, under certain contingencies, to the daughter to appoint by will such person or persons, as she might see proper, to take after her death.
The power of appointment given to Mary did not enlarge the fee conditional to an absolute fee simple in her. This power was not an absolute power, but one which was to be exercised only upon the happening of certain contingencies. These contingencies never happened, and, therefore, the fee conditional was never defeated by the exercise of the power. Nor was it enlarged in Mary by the grant of this power, because such enlargement never takes place where the first estate is distinctly marked out and defined, such as a life estate or other estate less than a fee simple; and where.the exercise of the power is limited and restricted to the happening of contingencies, to have the effect of enlarging the first estate, it must be indefinite and the power must be absolute and unconditional. Pulliam v. Byrd, 2 Strob. Eq. 134.
The conclusion of the court is, that Mary took a fee condi[610]*610tional in equity. It is elementary that the term “heirs of the body ” are precisely the terms required to be used to describe and measure this estate, while the word “ heirs,” without qualification* ereates a fee simple.
The curtesy of the husband, as a general rule, will attach to a fee conditional in the wife, whether his estate be an estate in law or a trust in equity. This is, the general rule in England and many of the states of the Union.
In our state, in the case of Wright v. Herron, 6 Rich. Eq. 407, it was held to attach to a fee conditional at law. True, the Court of Errors failed to agree in that case; but when it was returned to the Court of Chancery three of the learned Chancellors— Whrdlaw, Johnstone and Dargan — to one, sustained this estate. This was upon the ground that the act of 1791, as to distributions, did not touch fee conditionals. That act applied to fee simple estates, and fee conditionals were left as they existed at common law — certainly as to their descendible quality. And it followed as a necessary consequence, that the other incidents to such estates had not been disturbed by that act. We think that the case of Wright v. Herron is authority, not only as a decision, but upon principle.
We have already seen that there is no difference between legal and equitable estates as to their general incidents and qualities, and, consequently, it would seem, that where the curtesy would attach to-a legal estate, it should also attach to an equitable one ef the same quantity and character. And it has been so held frequently, as will be seen from cases hereinafter cited.
These are the general rules applicable to this subject; but before the curtesy can attach in any case, either legal or equitable, fee simple or fee conditional, all the authorities agree that four things are requisite, viz., marriage, actual seizin of the wife, issue and death of the wife. A failure in any one of these will prevent the curtesy from attaching, but when they all occur, the law vests the estate in the husband immediately on the death of the wife, without entry. This estate is said to be initiate on issue had, and consummate on the death of the wife.'
Seizin of the wife is one of the essential requisites. Seizin was formerly understood -to be a corporeal investiture by actual [611]*611livery of seizin. How this was effected it is not now necessary to explain, as it passed away after written muniments of title came to be used. The delivery of a deed, where there is no adverse possession or claimant, has been generally regarded as a sufficient seizin, on the ground that the possession follows the title. Green v. Liter, 8 Cranch 229. This has been considered sufficient as to legal estates to authorize the attaching of the husband’s curtesy. And as to equitable estates, the receipt of the rents and profits by the cestui que trust has been held to constitute an equitable seizin for the same purpose.
There is another important qualification affecting the right of the husband to his curtesy, especially as to the equitable estates of his wife, and that is: This right may be excluded by the grantor, and this will take place where the terms of the deed clearly show that such was the intention of the grantor, either by express declaration of such intent or by necessary implication from the language employed.
It has been held, also, as another important incident or qualification of estates of curtesy, that any circumstance which would have defeated or determined the estate of the wife, if living, will, of course, put an end to the curtesy, as this right will fall and be defeated with the estate out of which it was to be derived. And this applies to both legal and equitable estates of the wife. The derivative estate will fall with the estate which gives it its birth.
The principles "laid down above will be found in 4 Kent, eh. LXXX., p. 28, et seq.; I Qreenl. Oruise, eh. II., p. 136, et seq. ; 1 Washburn *130, et seq., and numerous cases referred to in the notes.
The difficulty in all the cases like this is not so much in establishing the general principles, as these are found fully discussed and plainly set forth by the learned authors mentioned, and others, as well as in the decisions of able judges in the different states • but it consists in the application of these principles to the special facts and circumstances which may surround and attend a case under consideration.
This is the difficulty here. We have seen that the estate of the wife of the appellant was a fee conditional trust estate. There [612]*612was coverture, and birth of issue capable of inheriting this estate. This issue has since died while an infant, thus ending the fee conditional which was created by the deed of Samuel Jenkins, and, under the law, reverting the whole estate to him. Wright v. Herron, 5 Rich. Eq. 443.
Now, was the wife of the appellant ever seized? If so, does-the deed or not clearly indicate an intent and purpose on the part of the grantor that the curtesy of the husband should be excluded ? And, lastly, if the curtesy did attach, what effect has-the subsequent death of the issue' had upon it? Is that such a termination of the primal estate as to have destroyed the derivative? These are the questions which must now be considered.
The wife, according to the old English law, must be seized in fact and in deed, and not merely á seizin in law, of an estate of inheritance, to entitle the husband to his curtesy, says Chancellor Kent, 4 Com. 30, citing Co. Lit. 29 a; Mercer v. Seldon, 1 How. (U. S.) 37. He adds: “ This is still the general rule at law, though in equity the letter of it has been relaxed by a free and liberal construction.”
The circumstances of this curtesy have justly required some qualification of the strict letter of the rule relative to a seizin in fact by the wife. And if she be the owner of waste, uncultivated lands, not held adversely, she is deemed seized in fact, so as to-entitle her husband to his right of curtesy.
At common law the husband could not be the tenant by thecurtesy of a use; but it is now settled otherwise in equity, and the husband may be tenant by curtesy, if the wife has an equitable estate of inheritance, notwithstanding the rents and profits are to be paid to her separate use during coverture. 1 AtJc. 607; 4 Kent 30.
The receipts of the rents and profits, it is stated, is a sufficient seizin of the wife. Morgan v. Morgan, 5 Madd. 408. Mr. Washburn, vol. I., *130, says: “ In respect to the seizin of the wife, it must, in general terms, be of an estate of inheritance but this must be either a legal or equitable one. In giving effect to the estates under the statute of uses, Courts of Equity intended to follow the law, and in most respects have followed it in regard to the nature and incidents of such estates. Among these was [613]*613the right of curtesy, and husbands of cestuis que trust were allowed to take their estates by curtesy if they were estates of inheritance ■of which the wife had what answered in equity to a seizin at law of legal estates in possession. And the receipt of rents and profits by the wife as such cestui que trust, during coverture, is ordinarily sufficient seizin in equity to give the husband curtesy.” Morgan v. Morgan, 5 Madd., supra. But, he adds, “ it does not seem to be sufficient seizin of a trust estate to give her husband curtesy thereof.” That the wife had the rents and profits by the terms of the trust deed to her own and separate use, her seizin, in such ease, not enuring to the benefit of the husband, he cites Hearle v. Greenback, 3 Atk.; Sweetapple v. Bedon, 2 Vern. 537, n. It seems, then, that nothing less than the receipt of the rents and profits by the wife, during coverture, will constitute an equitable seizin in a trust estate. . .
Did the appellant’s wife ever receive any portion of the rents and profits of this property? It appears from the record that the original proceeding in this case was instituted to recover the lot and the rents and profits, it being charged in the complaint that Jenkins was in possession of the lot and had received all the rents and profits.
Jenkins is an adverse claimant, denying the validity of the •deed, and contesting all the claims of appellant. If the wife’s estate was a legal estate, these facts, under the decisions, would negative seizin, because where there is an adverse claimant, and especially where he is in possession, the possession does not follow the title to such extent as to constitute a seizin in the wife, and. under such circumstances the curtesy of the husband could not attach even to a legal estate, much less could it attach in a trust estate like this, where the adverse claimant is in possession, denying the trust and refusing to accord his rents and profits. Parker v. Carter, 4 Hare *414; De Gray v. Richardson, 3 Atk. 469. It seems that the cestui que trust has never received any portion of the rents and profits. She may have been entitled to them, but her failure to receive them prevents seizin, and a failure of seizin prevents curtesy.
Did the grantor intend to exclude the curtesy ? We have seen from the authorities that a grantor has the right to do this, and [614]*614that when the question is raised it is a question of intention. In one case; where he expressly excluded the husband from the right of curtesy, this exclusion was enforced. Bennet v. Davis, 2 P. Wms. 310, and Clark v. Clark, 24 Barb. 582. It has been held in several English cases that simply declaring that the trust is for the sole and separate use and benefit of the wife does not necessarily raise the implication that it was the intention of the grantor to cut off the curtesy, and in such cases the equitable seizin of the wife, by the receipt of the rents and profits, would-enure to the benefit of the husband and save his curtesy.
Lord Hardwick, in the case of Roberts v. Dexwell, 1 Atk. 607, heid that the husband might lose his curtesy in an estate devised to the wife for her separate use. His opinion in Hearle v. Greenback, 1 Ves. 303, is somewhat in conflict with this, and the two can scarcely be reconciled; but the doctrine seems to be well settled in accordance with the decision of Roberts v. Dexwell, and if there was nothing more in this deed than that the estate was settled to the sole and separate use of the wife of respondent, that would not be an insuperable barrier in his way — in fact, it would present no objection to his claim; but the deed goes further, and in very emphatic terms declares that the estate given to his daughter Mary shall not be liable for the debts or contracts of any husband with whom she may intermarry and shall be free from his control. Now, can this express inhibition be limited only to the estate existing during the life of the wife? In endeavoring to reach the intention of the grantor, is that a fair interpretation of the terms he used in his deed ? He had not only the welfare of his daughter in his mind, as it appears, but he went beyond her and was looking to the issue of her body — his grandchildren — his own descendants — and his deed was as much for their benefit as for hers, and he expressly excluded any husband which she might have from all control of the property conveyed. We think this was about as strong as the case of Bennet v. Davis, supra, where the curtesy in terms was denied.
Mary died in November, 1869, leaving one son living, who died in March thereafter, while an infant. The fee conditional terminated with the death of this son, and, under the law, the whole estate has reverted to the respondent — the grantor — who [615]*615now is invested with the legal title in fee simple, and is in possession.
As a general rale, where the primal estate determines the derivative estate, whether it be dower or curtesy, also ceases, upon the maxim eessante statu primitivo eessat derivativus. This has been held to apply generally to determinable deeds and not to limitations over. In 'this last class of cases it is said the limitation merely shifts the estate- from one person to another, and leaves the prior seizin undisturbed. The limitation over takes effect and the estate next in expectancy vests without* entry, and the entry is preserved. 4 Kent *34. But the cases of estate tail, determining by failure of issue, and of a fee determining by ex-ecutory devise or shifting use, are exceptions to the general rule denying curtesy or dower after the determination of the principal estate.
These distinctions are quite abstruse and subtle, and it seems anomalous that in this case, after the primitive estate, out of which, but for the other facts already discussed, the appellant might claim by curtesy, has, by the death of his son, ceased and is gone forever, and the fee has returned to grantor, who is now and has ever been in possession, yet that he should be still entitled to hold the property during his life as tenant by curtesy; but such appears to be the law, and if there was nothing else in the way but this, the appellant would be* entitled to have the decree below reversed and his tenancy by curtesy enforced.
But we think there was no seizin of the wife in this case; and we further think that there is a necessary implication arising from the terms of the deed, that it was the intention of the grantor to exclude the curtesy of any husband that might intermarry with his daughter; and upon these grounds we sustain the result of the decree of the Circuit judge.
The deed in this case was executed before the adoption of the constitution of 1868, and before the passage of any act on the subject of the rights of married women. The rights of the parties, if any, had vested, and we do not see how the constitution of 1868 or the acts referred to could affect this question. If the estate of Mary became executed in her, because after the adoption of the constitution a trustee was no longer necessary, and [616]*616the trust estate became a legal one, yet Samuel Jenkins has been at all times in possession; and even in this case there would, be no legal seizin in the wife, and the intent to exclude the curtesy would still exist in the deed.
While we cannot agree to the reasoning by which the Circuit judge reaches his conclusion, we think his conclusion is right. The decree is affirmed and the appeal dismissed.
McIver and McGowan, A. J.’s, concurred.