We think that the appeal cannot be sustained, since actual seizin in the wife is necessary in order to vest the husband with the estate in curtesy. In Ferguson v. Tweedy ( 43 N.Y. 543) it was held that, as a general rule, actual seizin of the wife during coverture is necessary to a tenancy by the curtesy; that where there is an outstanding estate for life the husband cannot be tenant by the curtesy of the wife's estate in reversion or remainder unless the particular intervening estate terminate during coverture. This rule has been relaxed somewhat in respect to wild and uninclosed lands, but in a case like the present it seems to remain as above stated.

By the common law of England, and also in the United States, where estates by the curtesy are recognized, it is requisite to entitle the husband to curtesy, not only that there be a legal marriage and issue born alive, and the death of the wife before that of the husband, but that the wife must be seized of an estate of inheritance during coverture. (12 Cyc. 1004, 1005; Carr v. Anderson, 6 App. Div. 6, 10; Collins v. Russell, 96 id. 136; Ferguson v. Tweedy, 43 N.Y. 543.) In the instant case there was a marriage between plaintiff and the daughter of the grantor, and the court has found on sufficient evidence that there was a child born to these parties, and that it was born alive, although it died almost immediately after birth, and the death of the wife is undisputed.

Actual seizin does not necessarily mean physical possession. In Ferguson v. Tweedy ( 43 N.Y. 543, 548) Judge FOLGER stated the law as follows: "It is a general rule that to support a tenancy by the curtesy there must be an actual seizin of the wife. ( Mercer's Lessee v. Selden, 1 How. [U.S.] 37, 54.) The rule is not inflexible. There are exceptions to it.

But, so far as we have been able to discover, the authorities are uniform that the husband is not entitled to tenancy by the curtesy where the wife is seized of a remainder or reversion only. Such was the direct holding in Ferguson v. Tweedy ( 43 N.Y. 543) and in Tayloe v. Gould (10 Barb. 390). In Gibbs v. Esty (22 Hun, 266) a widow's dower was set off and it was held that the husband of a wife heir to the remainder had no rights as tenant by the curtesy.

In this State it was said by Judge BRONSON in Adair v. Lott (3 Hill, 182) that this doctrine did not apply where a wife took by deed, but did apply where she took as heir or devisee. (See also, Pond v. Bergh, 10 Paige, 140; Ferguson v. Tweedy, 43 N.Y. 543.) The common-law rule was well-settled that an heir's title to the real estate of his ancestors was not complete until entry. If the heir died before entry his title was defeated and the inheritance went to the heirs of the person last seized. If a wife claimed land by devise or descent and died before entry, the husband did not have his curtesy.

It is said that, if there be an outstanding estate for life, the husband cannot be the tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during coverture. If the husband, for the enjoyment of his curtesy, would have to wait until Dobson's death, then there was no complete title in his wife until Dobson's death. This seems so plain that I feel that neither mind nor matter should be further taxed in a discussion of it. Ferguson v. Tweedy, 43 N.Y. 543. The whole transaction looks to me like a varnished attempt to evade the Transfer Tax Law. It was not a bona fide sale for a valuable consideration, but a gift by deed of $80,000 worth of real estate for such companionship and care as Thomas might feel equal to. Dobson sold the cow, but hung onto the tail and milk.