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The Estate of Curtesy Can Not Be Barred by Will of the Person Giving the Lands to the Wife


THE ESTATE OF CURTESY CAN NOT BE BARRED BY WILL OF THE PERSON GIVING THE LANDS TO THE WIFE. The right of the husband to curtesy in his wife's lands cannot be barred by the will of the grantor or tes tator by which the wife become possessed of the es tate, since curtesy is an inseparable incident of the freehold estate which attaches by a rule of law and cannot be contravened by the wish of a private per son.

AN ESTATE BY CURTESY MAY BE BARRED BY AN INTENTION SO WHEN LANDS ARE CONVEYED IN TRUST TO USES. A trust may be so created as to exclude the husband's right of curtesy. It is im portant to observe what provisions in a trust instru ment will be held to show an intent to bar curtesy. If the estate is given directly to the wife without the intervention of a trust, it is not a question of intent, but one of power, as the courts hold that when a fee is created the grantor has not the power to make such a limitation. But if the estate instead of being given directly is conveyed in trust to a third person for certain uses, the grantor has the power to bar the dower or curtesy if he uses language which shows an intent to do so. So that in such cases the ques tion for the court is to determine the intent of the grantor from the language used, and if it was the in tent to bar dower or curtesy it will be barred.

In some of the states it is held that the estate of curtesy is not barred, unless the language used in the settlement itself bars the estate by curtesy. That is, that no general language will be construed to deprive the husband of the estate which the law gives him.

trust and grantor