man's own life cannot restrain him from such atrocious acts, the love of his wife and children may; though Britton (o) gives it another turn: viz. that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. VI. c. 12. abated the rigour of the common law in this particular, and allowed the wife her dower. But a subsequent sta- [131] tute (p) revived this severity against the widows of traitors, who are now barred of their dower (except in the case of certain modern treasons relating to the coin), (q) but not the widows of felons. An alien also cannot be endowed, " unless she be queen consort; for no alien is capable of holding lands. (r) The wife must be above nine years old at her husband's death, otherwise she shall not be endowed: (s) though in Bracton's time the age was indefinite, and dower was then only due "si uxor possit dotem promereri, et virum sustinere." (1) 2. We are next to inquire, of what a wife may be endowed. And she is now by law entitled to be endowed of all lands and tenements, of which her husband was seised in fee-simple or fee-tail, at any time during the coverture, and of which any issue, which she might have had, might by possibility have been heir. (u)25 Therefore, if a man seised in fee-simple, hath a son by his first wife, and after marries a second wife, she shall be endowed of his lands; for her issue might by possibility have been heir, on the death of the son by the former wife. But if there be a donee in special tail who holds lands to him and the heirs of his body begotten on Jane his wife; though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed; for no issue that she could have, could by any possibility inherit them. (v) A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands: which is one reason why he shall not be tenant by the curtesy but of such lands whereof the wife, or he himself in her right, was actually seised in deed. (w) The seisin of the husband, for a transitory instant only, when the [132] same act which gives him the estate conveys it also out of him again (as where, by a fine, land is granted to a man, and he immediately renders it back by the same fine), such a seisin will not entitle the wife to dower : (x) for the land was merely in transitu, and never rested in the husband, the grant and render being one continued act. But, if the land q Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26. 15 & 16 Geo. 11. c. 28. r Co. Litt. 31. v Ibid. § 53. Litt. § 36. w Co. Litt. 31. 11. 2. c. 9. §3. u Litt. § 36. (23) 54 Geo. III. c. 145. 24) Lord Hale's MSS. contain the following upon this subject. "Nota. Anciently a woman alien was not dowable; but by special act of parliament not printed, Rot. Parl. 8 Hen. V. n. 15 all women aliens, who from thenceforth should be married to Englishmen by licence of the king, are enabled to demand their dower after the death of their husbands, to whom they should in time to come be married, in the same manner as Englishwomen." According to lord Coke, an infidel, the wife of a Christian, shall not be endowed; and the case which he mentions as authority for this is, of a Jew in England who married a Jewess, and was afterwards converted to the Christian faith, and died, the wife brought a writ of dower, but was held to be barred. See Co. Litt. 31. b. Archbold. (25) But although at the death of her husband she has a right to the third part of his estates in dower, yet she is not entitled to emblements. Dy. 316. If the heir improve the land by building, &c. or impair the value of it, before assignment, she shall be endowed, according to the value at the time of the assignment. Co. Litt. 32. a. Sed secus if feoffee improve the land, as in this case she shall be endowed, not according to the value at the time of the assignment, but according to the value at the time of the feoffment.. 17 H. 3. Dower, 192. 31 E. I. Vouch. 282 abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof.(y) 26 And, in short, a widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorporeal, under the restrictions before mentioned; unless there be some special reason to the contrary. Thus, a woman shall not be endowed of a castle built for defence of the realm: (z) nor of a common without stint; for, as the heir would then have one portion of this common, and the widow another, and both without stint, the common would be doubly stocked. (a) Copyhold estates are also not liable to dower, being only estates at the lord's will; unless by the special custom of the manor, in which case it is usually called the widow's free bench. (6) 27 But, where dower is allowable, it matters not though the husband aliene the lands during the coverture: for he alienes them liable to dower. (c)28 3. Next, as to the manner in which a woman is to be endowed. There are now subsisting four species of dower; the fifth, mentioned by Littleton, (d) de la plus belle, having been abolished together with the military tenures, of which it was a consequence. 1. Dower by the common law; or that which is before described. 2. Dower by particular custom; (e) as that the wife should have half the husband's lands, or in some places the whole, and in some only a quarter. 3. Dower ad ostium ecclesiae: (f) [133] which is where tenant in fee-simple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (sir Edward Coke in his translation of Littleton, adds) troth plighted between them, doth endow his wife with the whole, or such quantity as he shall please, of his lands; at the same time specifying and ascertaining the same; on which the wife, after her husband's death, may enter without farther ceremony, 4. Dower ex assensu patris; (g) which is only a species of dower ad ostium ecclesiae, made when the husband's father is alive, and the son by his consent, expressly given, endows his wife with parcel of his father's lands. In either of these cases, they must (to prevent frauds) be made (h) in facie ecclesiae et ad ostium ecclesiae; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestine fuere conjugia. It is curious to observe the several revolutions which the doctrine of dower has undergone, since its introduction into England. It seems first to have been of the nature of the dower in gavelkind, before-mentioned: viz. a moiety of the husband's lands, but forfeitable by incontinency or a second marriage. By the famous charter of Henry I., this condition of widowhood and chastity was only required in case the husband left any isy This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seised of an estate in fee by survivorship, in consequence of which seisin bis widow had a verdict for her dower. (Cro. Eliz. 503.) z Co. Litt. 31 3 Lev. 401. b 4 Rep. 22. c Co Litt. 32. e Litt. § 37. f lbid § 39. b Bracton, l. 2 c. 39. § 4. a Co. Litt. 32. 1 Jon. 315. d Co. Litt. 48, 49. g Ibid. § 40. (26) Because, in the first instance, he has no property in the land, but is merely the medium to convey it to the party who receives it under the contract; in the latter it must be understood, that the right of property is in him, though he may retain that right only for a moment. 27) The nature and extent of the dower varies in different manors, according to the custom. See Watkins on Copyholds, and Scriven, 86. (28) It is now settled, that, although the husband may be tenant by the curtesy of a trust es tate of inheritance, the wife is not entitled to dower out of such an estate. SP. Wms. 229. 2 Atk. 525. The reason assigned why the wife has not dower out of a trust estate is, that she was not endowed of a use at common law. And from analogy to trusts it has been determined, that a wife shall not be endowed of an equity of redemption, where the estate was mortgaged in fee by the husband previous to the marriage. 1 Bro. 326. sue: (i) and afterwards we hear no more of it. Under Henry the Second, according to Glanvil, (k) the dower ad ostium ecclesiae was the most usual species of dower; and here, as well as in Normandy, () it was binding upon the wife, if by her consented to at the time of marriage. Neither, in those days of feodal rigour, was the husband allowed to endow her ad ostium ecclesiae with more than the third part of the lands whereof he then was seised, though he might endow her with less; lest by such liberal endowments the lord should be defrauded of his wardships and other feodal profits. (m) But if no specific dotation was made at the church porch, then she was endowed by the common law of the third part (which [134] was called her dos rationabilis) of such lands and tenements as the husband was seised of at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquisitions: (n) and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower (0) in lands which he afterwards acquired. (p) In king John's magna carta, and the first chapter of Henry III., (9) no mention is made of any alteration of the common law, in respect of the lands subject to dower: but in those of 1217 and 1224, it is particularly provided, that a widow shall be entitled for her dower to the third part of all such lands as the husband had held in his lifetime(r) yet in case of a specific endowment of less ad ostium ecclesiae, the widow had still no power to waive it after her husband's death. And this continued to be law, during the reigns of Henry III. and Edward I. (s) In Henry IV.'s time it was denied to be law, that a woman can be endowed of her husband's goods and chattels : (1) and, under Edward IV., Littleton lays it down expressly, that a woman may be endowed [135] ad ostium ecclesiae with more than a third part; (u) and shall have her election, after her husband's death, to accept such dower or refuse it, and betake herself to her dower at common law. (w) Which state of uncertainty was probably the reason, that these specific dowers, ad ostium ecclesiae and ex assensu patris, have since fallen into total disuse. I proceed, therefore, to consider the method of endowment or assigning dower, by the common law, which is now the only usual species. By the old law, grounded on the feodal exactions, a woman could not be endowed without a fine paid to the lord; neither could she marry again without his licence; lest she should contract herself, and so convey part of the feud, to the lord's enemy. (x) This licence the lords took care to be well paid for; and, as it seems, would sometimes force the dowager to a second marriage, in order to gain the fine. But, to remedy these oppressions, it i Si mortuo viro uxor ejus remanserit, et sine liberis fuerit, dotem suam habebit:-si vero uxor cum liberis remanserit, dotem quidem habebit, dum corpus suum legitime servaverit. (Cart. Hen. I. A. D. 1001. Introd. to great charter, edit. Oxon. pag. iv.) 1 Gr. Coustum. c. 101. m Bract. 1. 2. c. 39. § 6. k l. 6. c. 1. & 2. o Glanv. c. 2. n De questu suo. (Glan. ib)-de terris acquisitis et acquirendis. (Bract. ib.) p When special endowments were made ad ostium ecclesiae, the husband, after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife (quod dotam cam de tali manerio cum pertinentis, &c. Bract. ibid.) and therefore in the old York ritual (Seld. Ur. Hebr. 1. 2. c. 27,) there is, at this part of the matrimonial service, the following rubric: "sacerdos interroget dotem mulieris ; et, si terra ei in dotem detur, tunc dicatur psalmus iste, &c." When the wife was endowed generally (ubi quis uzorem suam dotaverit în generali, de omnibus terri et tenementis; Bract. ib.) the husband seems to have said, "with all my lands and tenements I thee endow;" and then they all became liable to her dower. When he endowed her with personalty only, he used to say," with all my worldly goods (or, as the Salisbury ri tual has it, with all my worldly chatte!) I thee endow;" which entitled the wife to her thirds, or pars rationabilis, of his personal estate, which is provided for by magna carta, cap. 26. and will be farther treated of in the concluding chapter of this book; though the retaining this last expression in our modern li (urgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her husband's personalty. q 4. D. 1216. c. 7. edit. Ozon. r Assignetur autem ei pro dote sua tertia pars totius terrae mariti sui quae sua fuit in vita sua, nisi de mi« nori dotata fuerit ad ostium ecclesiae. c. 7. (Ibid.) s Bract. ubi supr. Britton. c. 101, 102. u 39. F. N. B. 150. t7 Hen. IV. 15, 14. VOL. I. 62 Fiet. l. 5. c. 23. § 11, 12. x Mirr. c. 1. §.5. was provided, first by the charter of Henry I. (y) and afterwards by magna carta, (2) that the widow shall pay nothing for her marriage, nor shall be distrained to marry afresh, if she chooses to live without a husband; but shall not however marry against the consent of the lord; and farther, that nothing shall be taken for assignment of the widow's dower, but that she shall remain in her husband's capital mansion-house for forty days after his death, during which time her dower shall be assigned. These forty days are called the widow's quarantine, a term made use of in law to signify the number of forty days, whether applied to this occasion, or any other. (a) The particular lands, to be held in dower, must be assigned (b) 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 re[136] spect of the lands so holden. For the heir by this entry becomes tenant thereof to the lord, and the widow is immediate 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 quarantine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it. (c) 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 dower. (d) 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 like. (e) 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 itself 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 had 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 disabilities before-mentioned, but also by detaining the title deeds or evidences of the estate from the heir, until she [137] restores them: (f) and, by the statute of Gloucester, (g) if a dowager alienes the land assigned her for dower, she forfeits it ipso facto, and the heir may recover it by action. 30 A woman also may be barred of y ubi supra. z cap. 7. a It signifies, in particular, the forty days, which persons coming from infected countries are obliged to wait, before they are permitted to land in England. b Co. Litt. 34, 35. c Ibid. 34, 35. d F. N. B. 148. Finch. L. 314. Stat Westm. 2. 13 Edw. I. c. 7. e Co. Litt. 82. f Co. Litt. 39. g 6 Edw. 1. c. 7. (29) By the custom of Kent, the wife's dower of the moiety of gavelkind lands was in no case forfeitable for the felony of the husband, but where the heir should lose his inheritance. Noy's Max. 28. But this custom does not extend to treason. Wright's Tenures, 118. Rob. Gavelk. 230. (30) "The mischief before the making of this statute (Gloucester, c. 7.) was not where a gift or feoffment was made in fee or for term of life (of a stranger) by tenant in dower, for in that case, he in the reversion might enter for the forfeiture, and avoid the estate. But the mischief was, that when the feoffee, or any other, died seised, whereby the entry of him in the reversion was taken away, he in the reversion could have no writ of entry ad communem legem until after her dower, by levying a fine, or suffering a recovery of the lands, during her coverture. (h) 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 Coke; (i) “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 hus"band, for the life of the wife at least." This description is framed from the purview of the statute 27 Henry 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 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 the wife before marriage, she shall be for ever precluded from the dower. (k) But then [138] 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 33 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; h Pig. of recov. 66. i 1 Inst. 36. k 4 Rep. 1, 2, the decease of tenant in dower, and then the warranty contained in her deed barred him in the reversion if he were her heir, as commonly he was and for the reinedy of this mischief this statute gave the writ of entry in casu proviso in the lifetime of tenant in dower." 2 Inst. 309. But the statute was not intended to restrain tenant in dower from aliening for her own life, for such an estate wrought no wrong. Ibid. Chitty. (31) Bac. Ab. tit. Dower, E. Com. Dig. tit. Jointure. 1 Cru. Dig. 196. and index, tit. Jointure. (32) Although the estate must be in point of quantity for her life, yet it may be such as may be determined sooner by her own act. Thus, an estate durante viduitate is a good jointure, because unless sooner determined by herself, it continues to her for life. Mary Vernon's case. 4 Rep. 3. (33) 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 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. Chitty |