The live issue of live issue: widowers and tenancy by the curtesy in medieval England: paper for Family and Power in the Middle Ages conference, Canterbury Christ Church University

Tenancy ‘by the curtesy’, or ‘by the law of England’, the widower’s right to a life interest in his deceased wife’s land, was a feature of English land law from the medieval period until the twentieth century. It remains somewhat under-explored, however, having received considerably less attention than dower (the roughly parallel interest of the widow). This paper will consider the way in which a medieval widower could qualify for curtesy, looking in particular at changes in the theory and practice surrounding the determination of whether or not a live child had been born to the couple before the wife’s death - something which a widower was obliged to show before he could obtain an interest in the land. Those involved in disputes about curtesy might be wealthy and influential, and yet their fortunes could turn on a controversial decision as to whether or not an infant had survived its mother by a few minutes.Two late thirteenth century cases on this point, John Cantilupe’s Case (1277) and Danyel v. De La Bere (1292) provide important insights into the disputes which might arise in this context, and into differing factors and ideas contributing to the ways in which such disputes over family property were resolved. The paper will consider the ways in which the ‘lay’ view of live birth interacted with the ‘legal’ view, as well as highlighting additional evidence about the family disputes which led to these cases.

In terms of the conference’s overall ‘Family and Power’ theme, the cases are of interest in relation to: family (‘nuclear’ family and step-family), gender,life-cycle and property.