confined to copyhold property, yet it does not appear how the estate of a nief or villein could, with any propriety, be called free. Nor does it appear that the estate in dower of freehold property was ever denominated the widow's freebench; for as she held of the heir, she did not become tenant to the lord, nor, consequently, a bencher of his court, (as the widow of a copyholder did,) except in the instance of her husband's dying without heir; when, of necessity, she must hold of the lord, and may sit in his court (d). And in this instance the term of freebench would be applicable to her estate; and perhaps to distinguish it from the dower or bench estate of lands of villein tenure, the term of freebench might have been originally appropriated to it; though at this day, by no very uncommon mutation, it is appropriated to a species of tenure which it could not from the very nature of things originally embrace. [ 70 ] (d) For a woman may sit on the homage in the courtbaron to present, &c. See ante, vol: 1. p. [275.] n. (m). Curtesy. [71] The term of curtesy also appears to have once lost its original acceptation. The estate so denominated was considered by Littleton (e) and others as confined to this kingdom; and to exist here by a peculiar favour or courtesy. The application of the term, therefore, in the latter acceptation, to the estate which the husband takes in copyhold property must be most evidently absurd; as it is acknowledged that the husband shall not have his curtesy in copy. holds, but by special custom (f). Now if he can only claim it by the custom of the particular manor, it is clear that he does not accede to it by the curtesy of England; since the curtesy of England is the common law of the land, and always distinguished from the usage of a particular place (g). But as (e) Sect. 35. So in many ancient statutes the tenant by the curtesy is called tenant by the law of England: "Home qi tient PAR LA LEI de Engletterre.” Stat. Glo. 6 Ed. 1. cap. 3. & 5. Statutum pro TENEN TIBUS PER LEGEM ANGLIE, &c. (g) See ante, ch. 2. of Customs, p. [55]. And it cannot be applicable to the curtesy or favour of the peculiar manor, as the word curtesy would be equally applicable to any other particular custom of the manor. it is apparent that the term curtesy is, in its ancient and proper sense, synonimous with that of bench, and only expressive of the right of the person entitled to it to sit in the [72] lord's court or curtis (h), as a homager or bencher, it must be equally applicable to the one as to the other. Taking, therefore, the term curtesy in its original acceptation, I shall, notwithstanding, in compliance with the language of the day, consider the customary estate of the widow under the denomination of her freebench, and that of the husband as his customary curtesy. And, firstly then, of the widow's estate, or of freebench: And here it must be observed, that the Freebench widow can only claim her freebench by vir- able by cus tue of a special custom (i); and, conse only claim tom. (h) See 2 Black. Comm. 126. ch. 8. (i) 4 Co. 22. a. Brown's case, and 30. b. Shaw & Thompson. 73] Does not attach till the death of the husband. quently, where such custom exists, the estate she is to take must, both as to its quantity and duration, be such as the custom prescribes. The following observations, therefore, will be chiefly confined to those points in which freebench differs from dower at the common law. Freebench then differs from dower at the common law in that the former, unless the particular custom declares it to be otherwise (k), does not attach even in right till (k) By the custom of Thornbury in Gloucestershire and various other manors in the kingdom, the widow shall have her freebench "of all such customary tenements as her husband was at any time seized of during the coverture." And note; a dying seised is not essential to entitle the widow to dower of lands in gavelkind, according to the custom of Kent. See Robins. Gav. b. 2. c. 2. p. 172-3. By the custom of Marden al. Marwardine, in Herefordshire, only the mother of the heir, and not any other wife of the deceased ancestor, shall have her freebench. the actual decease of the husband (); whereas the right to dower at the common law, attaches immediately on marriage, and the widow is entitled to dower in lands of which the husband was seised at any time [74] during the coverture, and, consequently, as the dowress becomes entitled immediately on marriage, or at least immediately on the husband's becoming seised after marriage, no alienation of the lands by him alone can defeat her right. But, with respect to freebench, it is wholly different. As the right ed. of the wife does not attach, in the case of How defeat freebench, till the husband's death, any alienation by him alone, to take effect in his lifetime (m), though without any con 2 Atk. 526. Godwin v. Winsmore. 2 Durnf. & East, 580. the King v. the Inhabitants of Lopen. And see 3 Ves. Jun. 256. Brown v. Raindle. (m) For he cannot defeat her claim merely by devise; as the devise cannot take effect till his decease, when the freebench attaches. See Co. Entries, 123. a. 125. a. Hill v. Hill. But this must be understood of a devise good by special custom without a surrender to will (see ante, vol. 1. p. [121]. [122].): for if a sur |