
    Pemberton’s Leffee versus Hicks.
    THIS ejectment was tried at Newtown, in Bucks County, May, 1794, when the Jury found the following fpecial verdict:
    ■ “ The Jurors impannelled, tried, fworn and affirmed to try “ the iffue joined in this caufe- upo 1 their" refpedtive oaths and “ affirmations fay—That Laurence Grouden, being feized in fee “ of the premifes in the declaration mentioned, by his laft will in “ writing duly made and executed, devifed the fame premifes in fee fimple to his daughter Grace Galloway, then the wife of “ Jofeph Galloway, and afterwards died leized thereof as afore- “ faid : That the faid Grace Galloway had iftue by her faid « hufband, one daughter Elizabeth, who is ftill alive : That “ the faid Jofeph Galloway afterwards by A<ft of Affembly “ paffed on the 6th of March 1778, was required to furrender “ himfelf under pain of being attainted, of High Treafon 1 “ That the faid Jofeph Galloway did not furrender him- “ felf accordingly, and therefore became and ftood attainted oí a High Treafon to all intents and purpofes, and his eftate for- “ feited to the commonwealth, the faid- .Grace Galloway then “ being in full life : That the (aid premifes were afterwards du~ a 1 y feized and fold by the agents for forfeited eftates, and the a fame conveyed to the Defendant by the commonwealth. “ That the faid Jofeph Galloway fo being attainted, departed out of the United States into parts beyond fea, and ftill “ continues there in full life : That the faid Grace Galloway ‘‘.continued in the United States, and afterwards, to wit, on the “ 6th Feb. 1782, died feized in fee dimple of the premifes * aforefaid, having firft, to wit, on the 20th Dec. 1781, duly ‘‘ made and publiihed her laft will in writing, whereby “ ihe devifed the' faid premifes to Owen Jones and others;-. “ That the furvivors of the faid devifees afterwards, to wit, on the 6th of April 1790, conveyed the fame premifes to “ Thomas Rogers That the faid Thomas Rogers on the 20th “ April 1790, conveyed the fame premifes to the Leffor of “ the Plaintiff, who demifed the fame premifes to the fame “ Richard Fenn : That the fame Richard Fenn entered and A was oufted ■ by the faid Defendant.
    “ If upon thefe fa£ts the law be with the Plaintiff* they find “ for the Plaintiff and affefs fix pence damages, befides the “ cofts; but if for the Defendant they find for the Defendant.”
    The general queftion was, whether a tenant by the courtefy initiate, has an eftate forfeitable upon his attainder for treafon ? And it was argued at two feveral terms, by E• Tilghman. arid Leivis, fot the Leffor of the Plaintiff} and by Ingerfoll and Dallas, for the Defendant*
    For the Lejfor of the Plaintiff,
    
    the fubject was confidered .in three points of view: 1ft. What the hufband feized of real eftate, gains by the marriage, before the birth of- a child ? 2d. What-is the nature of the eftate Which he acquires after iffue ? And 3d. How, after iffue, does a forfeiture upon attainder operate ?
    1ft. By the marriage alone a hufband does' not gain a freehold in his own right, in the eftate of his wife } though he is jointly feized with her, during their joint lives, and is entitled to receive- the profits to his own ufe. The freehold and inheritance remain in her ;■ arid he muft, in legal proceedings, declare himfelf to be feized in fee, in right of his wife. 'Doug. 315.
    a. On the birth of a child, the hufband becomes only tenant by the curtefy initiate ; and, to complete his eftate, the death pf the wife, is an indifpenfable requifite. The quality and reafon of a tenancy by the curtefy, do not depend merely on the marriage; but, if the hufband furvives his wife, he obtains the puftody of . the. efta'te for the fake of the heir, as well as For his own immediate benefit, %. Bac. Abr. 659. The requifites to.constitute a tenancy by the curtefy, are dated in Cv. Lift. 30. a ; and they muft all concur before the eftate can exifti fo that until’the eftate is confummated by the death of the wife, the huiband is not feized in his own right; he has only a poflibili-ty,.:. depending on the contingency of his furvivorfhip. Litt, f. 35, To fay that his eftate is confummate before her death, is to fay that a thing exifts before the fa£t, which is neceffary to its exiftence. But by attainder the hufband became civilly dead and Could not, in legal Contemplation, furvive his wife, nor take an eftate by act of the law. 7 Co. 25. a. In Godb. 323 is the only dictum, which feems to have a direct relation to the prefent queftion ; but it muft be refpected as the ad-miffion of Lord Keeper Coventry, when Attorney-General. It is faid, that curtefy is forfeited on attainder of the hufband, by way of difcharge ; and the difcharge there meant, muft be a difcharge of the eftate; as to the hufband’s own future right againft the heir. 1 Bac. Abr. 660. 2 Leon.
    
    3- But the attainder; and confequent forfeiture, prevent the guilty perfon From being tenant by the curtefy. The law, which never does a ufelefs thing, will not caft an eftate upon an alien, or a felon ; 1 Vent. 412. 413; nor, by a parity of a reafon, will it caft an eftate by the curtefy on a perfon, who is previoufly rendered incapable to take, or enjoy, it, “ If a Feme takes Baron, who have iffue, and after he is attainted of felony, and “ then the king pardons.him, per Kebley heihall not be tenant by the curtefy by the iffue had before; contra, if he had iffue after." 7 Vin. Abr. 162. pl. 4. in not. Bro. tit. “ Tenant by Curtefy," pl. 15. p. 250. S. C. 13 H. 7, 17. S. C. 3 Com. Dig. 244. S. C. Stamp. P. C. 196. S. C. 3 Inft. 19. So, in the pre-fent cafe, Mr. Galloway could not be tenant by the curtefy, in confequence of the iffue before his attainder; the attainder deftroys all relationfhip between the father and fuch iffue, fo that he Can' take no benefit from their birth ; and the wife’s eftate being difcharged of his right, defeends, of courfe, to her heir at law, or devifee. Unlefs, in fhort, Mr. Galloway had an eftate for life, at the time of the attainder, he could not forfeit it. A mere right of action, or condition, fhall not be forfeited on attainder, by general words. 3 Co. p. 2. 3. 13 Vin. Abr. 441. pl. 14. 3 Inft. 19. And the hardfhip of the cafe cannot be overlooked ; for, as the attainder deprives the child of all rights of property, derived through the guilty father, it ought’not, furely to work a dilinheritance, likewife, as to the eftate of an innocent mother.
    For the Defendant,
    it was anfwered, that whether the fub-jstft Was confidered on general principles and authorities; or on the pofitive provifions of the A£t‘ of Affembly ; a tenant by the curtefy Initiate pofieffes fuch an intereft in the wife’s, cítate, as is forfeitable upon an attainder for treafon.
    1ft. On general principles and authorities, Itfe.ems a Arrange pofition, that the attainder of a traitor fhould, during his natural life, accelerate a defcent to his child. But if the traitor had an eftate in the premifes, it cannot defcend,.it muft be forfeited during the continuance of fuch eftate; for all his eftates are forfeited. 4 Bl. C. 374. 2 Wood. Lect. 504. The queftion is, therefore, limply, whether a tenant by the curtefy initiate has any eftate in the premifes, of which his wife is feized ? Before iffue, his intereft is, indeed, merely in prefpecft, a contingency, an expectation, a poffibility: but after iffue “ he begins, tea have a permanent intereft in the lands;” and nothing but his own natural death can defeat it, 2 BL Com. 126. The contingency has then happened, which, by the a'cft of the law, makes him as much tenant for life, as if he were tenant for life, in reverfion, or remainder, per formam doni. The diftineft ufe of the words, initiate and confummate, muft not be regarded as Creating a contingency, but as deferiptive of a peculiar eftate- While the wife lives, even before the birth of iftue, ■the huiband is feized of the land in fee in her right; and, after the birthof iftue, during her life, he cannot have abetter eftate; though his title to an eftate, ftpon her death, is commenced, or initiate. Hence his eftate by. the curtefy is called confummate on the death of the wife, in relation to the new and independent form by which he holds it; the feizen being then feparate, that was before joint. Co. Litt. 67. a. But, furely, when a man acquires a right to exercife acts of ownerfhip, that the bare feizen in right, of his wife, would not autorife, he muft be coofidered as paffefted of fome eftate. Thus, we find, that a tenant hy the curtefy initiate acquires .the right to do homage to the Lord alone. Litt. f. 9. Co. Litt. 30. 67. 2 Bl. Com. 126. Avowry fhall be made on him only in the life of his wife. Ca. Litt. 30. a. He may ufe the title of his wife’s dignity, Co. Litt. 29. b. He may do many a& to charge the land. 2 Bl. C,.i"i3. He may make a feofinent ; and-what he may grant, h;,. fully, may forfeit. Co. Litt. 30. a. b. 31. a. ■If, befides, nothing but a man’s own death (independent 
      of the punfhmenf for crime) can prevent his enjoying an eftate for life, has he no intereft in the land ? The death of the iffue, or its arrival at full age, or the treafon of the wife herfelf, cannot defeat the right acquired by a tenant by the curtefy initiate ; and fo far is Lord Coke from confidering it as a mere expectancy, contingency, or poffibility, that he emphatically declares, the hufband "having iffue, is entitled to " an eftate for the, term of his own life, in his own rights and " yet is feized in fee in the right of his wife, fo as he is not a bare tenant for life.” Co. Litt. 67. a. On the very point of forfeiture, the dictum in Godb. 323. is ftrongly in favor of the Defendant, if properly explained; for, forfeiture on attainder for treafon is always to the Crown , 4 Bl. C. 376. 381. -and that there ího'ujd be a forfeiture merely to difeharge the father’s lien upon the eftate, in favor of his children, is abfurd. During the coverture, the whole eftate is forfeited : and if the huiband dies firft, the eftate is as much difeharged by that event, as it can b.e by his attainder. But the analogy between the cafe pf curtefy, and the cafe of dower, will aflift in fupplying the defeCt of. poiitive authority. DoWer is forfeitable at common law ; and yet dower depends on the fame contingency of fur-yivorfhip as curtefy. 1 H. P. C. 253. 359. 2 Bl. C. 130. t. T'h.é feizen of the huiband gives an inchoate right to daw-pr; as the birth of heritable iffue gives a curtefy initiate: And when it is faid, that he cannot forfeit his curtefy by- his wife’s treafon, there is great room to. infer that he may forfeit it for his ovyn.; 4 Bl. C. 375.
    Suppofe an eftate deviled, or conveyed, to Galloway• and his Wife, and the furvivor of them ; or to him during the -life of his wife, with, remainder to him if he furvived. her;—.would-not the whole eftate he forfeited ? Would not the.forfeiture teach the right of furvivorfhip. ? Again : fuppofe an eftate in fee limpie devifed to. him with a double afpect;—a devife for years, with a contingent remainder to him in fee'; would not the remainder be: forfeited True, the tenancy by the Curtefy was not confummate, until the death of the wife; but does' this prove, that he had no eftate at the time of the attainder, nothing more than a poffibility ? Is homage done for a possibility ? Can,a rightly possibility enable a man to do many acts to charge the land ?■ Will a possibility make a man-a member of the pares curia ? Would a possibility give eífeét, to a feoffment made during the life of the wife, in cáfe be fur-Vived ?■ And if fo, what more could be effected by the feoff~° ment of a joint.tenant l "
    There are four requifites neceffary to make a tenancy by the curtefy ; three had occurred at the time of the attainder ; {ball the fourth confu.mmat;e, or defeat, the eftate ? In favor of the hu&aqd, or a purchafor under him, as againil the heir, it eon-iuinmates: why not in' favor of the Commonwealth ? It Is urged, in anfwer, that the law does not caft an eftate upon him, who cannot hold it: but the rulé is clearly otherwife, if the eftate accrues by the happening of a Contingency, by a limitation, by a condition, or by' a purchafe, in the legal fenfe, diftin-guiihed from defcent.
    In Co. Litt. 6,7. a. the curtefy is confidered as veiled, liable to be defeated by the death of the hufband, happening before the death of the wife ; but when the hufband is regarded by that authority as more than tenant for life, with a power to charge the lands, to fell them, to perform the feodal. inveftiture, &c. can it be reafonable to' fay that he has no eftate ? Is not-' this- an intereil beyond a right of a ¿lion, a right of entry, or condition ?—-all of which, it will be íhewn, are ftibjedts of forfeiture under the a£l of Aftembly.- But it is faid, that tenancy by the curtefy is a future-eftate. Litt. f. 35. and in fome re-fpedls theaflertion is true 1 yet, it k equally true, that in other refpeéls, after-the b,irth of iiTue,it is an intereil,and -not a contingency j—an Cxifting right, and nor merely a poflible benefit.
    It-is contended,- however, that the forfeiture itfelf prevents-.the guilty perfon from being tenant by the curtefy; 1 JSac. Abr. 660. but this authority evidently turns entirely upon the principle, that his-title-veils in the crown. In that, cafe, too, if no office is found, the eftate would return to the hufband on a pardon; and even if an office be found, a pardon- with words of reftitution would reftore it to him, provided no. intereil veiled in the fubjeft, 4 Bl. C. 402. ¿ Bl. C. 12⅜, 255. 3■ Bl. C. 259. 3 Bac. Abr. 8fO. It is true, if tenant by the curtefy acquires a new right-, after the pardon, the eftate would be his of coúrfe 5 as if he had no children before, or at the time of, the attainder; in which café río forfeiture of thic curtefy could be incurred; but has iiTue after the pardon, in which cafe he is a new man, capable of taking as if the attainder never had happened. After the attainder, and before the pardon, indeed, the eftate will not veil evert for the benefit of the crown, which-explains 1 Bac. Abr. 660. but if the curtefy is initiate at the' time of the attainder, the eftate pafies to the. crown, with all the capacity of being enlarged and confúmmate, as well as being defeated, to-which it was liable 'in the hands of the individual attainted.
    It is not confiften-t with the authorities to fay, that a tenant by the curtefy ⅛⅛816⅝ cannot grant his right, Irving his wife; and whatever a man-bas in his' oWn right he may forfeit 4 Leon, 112. Green's Bank Law¿ 124. The cafe cited f¡ om 7 Vin. Abr 1’02. pi. 2. is contradidted by pi. 4. it is notfnpported by r3 H. 
      
      j. 17. and it is at beft a diftum of Keble, when a lawyer at the bar.’ It is to be found, (likewife, in Noy. 159. and there it appears, that it was a queftion turning on the corruption of blood.
    2d. Rut whatever doubt may be created on the Engliih authorities, the pofitive provifions of the aft of Aflembly cannot be. obfcured or evaded. By the Original aft defining treafon ' and prefcribing its pyniArhent, the forfeiture upon attainder it declared, in -general terms,- to tíe “ Ae eftate” of the delinquent: I Vol. State Laws.f. 3. p. 727, 8. Dali. Edit. And Jn the aft for‘the attainder of divers traitors, including by name Mr. Galloway, it is declared, that unlefs they appear and conform to the law^ “ they Aall fuffer arid forfeit as perforts attaint of high treafon.” Ibid. f. 2, 3, 4. p: 751, 2. But when the fame aft'enters into a fpecification of. the fubjefts of forfeiture, it embraces, iñ exprefs terms, “all and every the “ lands, tenements, hereditaments, debts, or fum$ of money, “ or goods or chattels whatloever, and generally the ejlates, “ real and perfonal, of what nature or kind Joever they be, “ within this State, whereof the aforefaid JJeph Galloway, &c. “ Aall have been poffeifed. of, nterejle.d in, or entitled unto, “ on the 4th of July, 1776, or at any time afterwards, in their “ own right, or tothtii ufe, or which any other perfonor per- “ fons, Aall have been poffefied of, interefted in, or entitled un- “ to, to the ufe of, or in truft for them, -or any of them, Aall ac- “ cording to the refpeñive ejlates' and interejl.s, which the per- “ fons aforefaid, or any in truft for them, ,or any of them, Aall have had therein,-ftand and be forfeited to this State.” Ibid. J- 5- A 75¾> 3.
   . If tenancy by the curtefy initiate is an effate of any kind.; if it gives any inter ejf in the lands;—if it gives any title to the tenant; then is it- afubjeft of forfeiture, under the pofitive provifions of the aft of Aftembly. It is evident, that the forfeiture under this aft is more extenfive, than by the common law, or ftatutes, of England. 1 H. If- P- C. 24.2. In England the forfeiture is of lands arid tenements of inheritance, and rights of entry; and the profits of lands and tenements, which the attainted per-fon had in his own right for life, or for years: 4 Bl. C, 381. But here, in addition to thefe objefts, rights of entry touching lands, a right to reverie a judgment, and all conditions, ufes, and trufts, aré forfeited, if, therefore, a tenancy by the cur-tefy initiate is forfeited by attainder in England, a fortiori it is forfeited in Prnnfylvania. ■ -

Cur. Adv. Vult.  