any other. The particular lands, to be held in dower, must be assigned by the heir of the husband, or his guardian; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the lands so holden. For the heir by this entry becomes tenant thereof to the lord, and the widow is imme- [136] diate tenant to the heir, by a kind of subinfeudation,

or under-tenancy, completed by this investiture or assignment; which tenure may still be created, notwithstanding the statute of quia emptores, because the heir parts not with the fee-simple, but only with an estate for life. If the heir or his guardian do not assign her dower within the term of quarentine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it. Or if the heir (being under age) or his guardian assign more than she ought to have, it may be afterwards remedied by writ of admeasurement of dowerd. If the thing of which she is endowed be divisible, her dower must be set out by metes and bounds; but if it be indivisible, she must be endowed specially; as of the third presentation to a church, the third toll-dish of a mill, the third part of the profits of an office, the third sheaf of tithe, and the likee.

UPON preconcerted marriages, and in estates of considerable consequence, tenancy in dower happens very seldom: for, the claim of the wife to her dower at the common law diffusing herself so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alteration of the ancient law respecting dower ad ostium ecclesiae, which hath occasioned the entire disuse of that species of dower, jointures have been introduced in their stead, as a bar to the claim at common law. Which leads me to inquire, lastly,

4. How dower may be barred or prevented. A widow may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband, and other disabi lities before-mentioned, but also by detaining the title deeds, or evidences of the estate from the heir, until she restores themf: and, by the statute of Glocesters, if a dowa[137] ger alienes the land assigned her for dower she forfeits it ipso facto, and the heir may recover it by action (11). A woman also may be barred of her dower, by levying a fine, or suffering a recovery of the lands, during her coverture. But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.

A JOINTURE, which, strictly speaking, signifies a joint estate, limited to both husband and wife, but in common acceptation extends also to a sole estate, limited to the wife only, is thus defined by sir Edward Cokei; “a competent "livelihood of freehold for the wife, of lands and tenements; "to take effect, in profit or possession, presently after the "death of the husband; for the life of the wife at least." This description is framed from the purview of the statute 27 Hen. VIII. c. 10. before-mentioned; commonly called the statute of uses, of which we shall speak fully hereafter. At present I have only to observe, that before the making of that statute, the greatest part of the land of England was. conveyed to uses; the property or possession of the soil being vested in one man, and the use, or profits thereof, in another; whose directions, with regard to the disposition thereof, the former was in conscience obliged to follow, and might be compelled by a court of equity to observe. Now, though a husband had the use of lands in absolute fee-simple, yet the

f Co. Litt. 39.

g 6 Edw. I. c. 7.

h Pig, of recov. 66.

i 1 Inst. 36.

(11) That is in fee or for the life of a stranger; but lord Coke says, "this is not intended for the life of tenant in dower herself, for such an estate wrought no wrong." 2 Inst. 309.

wife was not entitled to any dower therein; he not being seised thereof: wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives, in joint-tenancy, or jointure; which settlement would be a provision for the wife in case she survived her husband. At length the statute of uses ordained, that such as had the use of lands, should, to all intents and purposes, be reputed and taken to be absolutely seised and possessed of the soil itself. In consequence of which legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special lands that might be settled in jointure: had not the same statute provided that upon making such an estate in jointure to [138] the wife before marriage, she shall be for ever precluded from her dower k. But then these four requisites must be punctually observed; 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur auter vie, or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be (12), in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower ad ostium ecclesiae, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capa

k 4 Rep. 1, 2.

(12) Or it may be averred to be, 4 Rep. 3. An assurance was made to a woman, to the intent it should be for her jointure, but it was not so expressed in the deed. And the opinion of the court was, that it might be averred that it was for a jointure, and that such averment I was traversable. Owen, 33. But a trust estate, or an agreement to settle lands as a jointure, is a good equitable jointure in bar of dower.

ble of consenting to it during coverture (13). And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law (14).

THERE are some advantages attending tenants in dower that do not extend to jointresses; and so vice versa, jointresses are in some respects more privileged than tenants in dower. Tenant in dower by the old common law is subject to no tolls or taxes; and her's is almost the only estate on which, when derived from the king's debtor, the king cannot distrein for his debt; if contracted during the coverture m. But, on the other

I These settlements, previous to marriage, seem to have been in use among the ancient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. "Dotem non uxor marito, sed uxori maritus "affert: intersunt parentes et propinqui, et

munera probant." (de mor. Germ. c. 18.) And Cesar (de bello Gallico, L. 6. c. 18.) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. "Viri, quantas pecunias "ab uxoribus dotis nomine acceperunt, tantas " 'ex suis bonis, aestimatione facta, cum doti

bus communicant. Hujus omnis pecuniae "conjunctim ratio habetur, fructusque ser"vantur. Uter eorum vita superavit, ad

eum pars utriusque cum fructibus superio"rum temporum pervenit." The dauphin's commentator on Cesar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (Nov. 97.) with regard to the provision for widows among the Romans: but surely there is as much reason to suppose, that it gave the hint for our statutable jointures.

m Co. Litt. 31. a. F. N. B. 150.

(13) And where a devise is expressed to be given in lieu and satisfaction of dower, or where that is the clear and manifest intention of the testator, the wife shall not have both, but shall have her choice. Harg. Co. Litt. 36. b.

(14) It has been determined, that if a woman, who is under age at the time of marriage, agrees to a jointure and settlement in bar of her dower, and her distributive share of her husband's personal property, in case he dies intestate, she cannot afterwards waive it; but is as much bound, as if she were of age at the time of marriage. Lord Northington had decreed the contrary; but his decree was upon both points reversed. Drury v. Drury, 4 Brown's P. C. 570.

hand, a widow may enter at once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiae, which a jointure in many points. resembles; and the resemblance was still greater, while that species of dower continued in its primitive state: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower". And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow. Wherefore sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiae, the most eligible species of any (15).

(15) A jointure is not forfeited by the adultery of the wife, as dower is; and the court of chancery will decree against the husband a performance of marriage articles, though he alleges and proves that his wife lives separate from him in adultery. Cox's P. Wms. 277.