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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 *132]
of the husband, for a transitory instant *only, when the 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 abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof (y) And, in short, a (*) Ibid. 253.
the son was supposed to have survived the father, by appear. (*) Co. Litt. 31.
ing to struggle longest; whereby he became seised of an (*) Cro. Jac. 615. 2 Rep. 67. Co. Litt. 31.
estate in fee by survivorship, in consequence of which seisin This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but
his widow had a verdict for her dower. Cro. Eliz. 503.
and therefore she shall not be endowed. Litt. s. 45. Co. Litt. 37. The principle of this rule is founded on the nature of the interest of joint-tenants, (see post, 182,) from which survivorship is a necessary consequence, and not an arbitrary rule of law. During the life of the husband, his joint-tenant's interest pervaded the whole of the land: now, the tenant in dower would come in as tenant in common, and be entitled to hold the third of one moiety by a distinct title. The survivor's interest would therefore be changed ; he would be obliged to recede entirely from that third in which before he had a jointinterest, and he would be put to this change by one whose title was posterior to his own. The maxim of law is that jus accrescendi prefertur oneribus.-COLERIDGE.
Yet it would not be accurate to say “sole seised;" for a tenant in common is not sole seised: yet his wife shall be endowed. We cannot expect the statement of a general rule always to express all the exceptional or anomalous cases which may exist. In truth, however, joint-tenants make together but one tenant: for this reason, the survivor may plead the feoffment by which the joint-tenancy was created as made to himnself alone, without naming his companion. Co. Litt. 185, a.-SHARSWOOD.
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 er:dowed according to the value at the time of the assignment. Co. Litt. 32, a. if fenffee 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. 1. Vouch. 288.–ARCHBOLD.
20 The student may reasonably be puzzled to distinguish between the “transitory instant" of one example and the “single moment" of the other. In fact, the space of time is no essential ingredient in the case: it is the interest of the husband. In the first example, the cognisee of the fine takes absolutely no interest at all by the grant: he is, to use the expression of the text, (p. 364,) a mere instrument or conduit-pipe to carry an estate to the cognisor, or, it may be, to a stranger; he is simply to perform a contract made by himself with the cognisor, or between the cognisor and a stranger. Upon this ground it is, I conceive, that the wife would not be dowable. In the second example, the land is supposed to be abiding in the husband as his own.-COLERIDGE.
See Ballard vs. Bowers, 10 N. Hamp. 500. Stanwood vs. Dunning, 2 Shep. 290. Ran. dolph vs. Doss, 3 Howard, (Miss.) 205.
In the United States, the rule generally adopted is that a wife is dowable of an equity of redemption, and, indeed, of a trust-estate generally. The anomalous distinction of the English courts between dower and curtesy in this respect has been repudiated. Shoemaker vs. Walker, 2 S. & R. 554. Coles vs. Coles, 15 Johns. 319. Fish vs. Fish, 1 Conn. 559. McMahan vs. Kimball, 2 Blackf. 1. Reed vs. Morrison, 12 S. & R. 18. Lewis vs. James, 8 Humph. 537. The truth is that the doctrine of seisin is little known here, because it is inconsistent with the genius and spirit of our laws, which give a free scope
widow may be endowed of all her husband's lands, tenements, and heredita. ments, corporeal or incorporeal,21 under the restrictions before mentioneu; 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 with. out 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) But, where dower is allowable, it matters not though the nusband aliene the lands during the coverture; for he alienes them liable to dower.(C)
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.23 1. Dower by the common law; or that which is before de(5) Co. Litt. 31. 3 Lev. 401.
(d) Ibid. 22 48, 49.
() Co. Litt. 32.
(a) Co. Litt. 32. 1 Jon. 315.
to the alienation and transfer of property, untrammelled with the feudal doctrine of in vestiture and its concomitants; and with us seisin is, for many substantial purposes, the beneficial interest and right of ownership. Where the husband's fee, however, is determined by recovery, condition, or collateral limitation, the wife's dower determines with it. The case of a tenant in tail-in which the wife is endowed notwithstanding the estate-tail is determined by the death of the tenant in tail without issue-is an exception arising from an equitable construction of the statute de donis; and the cases of dower of estates determinable by executory devise and springing use owe their existence to the circumstance that these limitations are not governed by common-law principles. Preston on Abst., 3 vol. p. 372. Before the statute of wills there was no executory devise, and before the statute of uses there was no springing use. Like estates-tail, which were created by the statute de donis, and of which there is constantly dower, though tenant in tail claims per formam doni, it was the benign temper of the judges who moulded the limitations of the estate introduced by them, whether original or derivative, so as to relax the severer principles of the common law; and, among other things, to preserve curtesy and dower from being barred by determinations of the original estate, which could not be prevented. Gibson, C. J., in Evans vs. Evans, 9 Barr, 190. Where the grantor of an estate on a condition enters for condition broken, the dower of the wife of the grantee falls with the estate of the husband. Beardslee vs. Beardslee, 5 Barb. S. C. 324.-SHARSWOOD.
21 Our author, we may be sure, did not mean to intimate that a widow was entitled to dower out of all her husband's incorporeal hereditaments, of what nature soever, but only out of such incorporeal hereditaments as savour of the realty. Buckeridge vs. Ingram, 2 Ves. Jr. 664.-Chitty.
* If a man has made an exchange of lands, his widow must not be endowed both out of the lands given in exchange and also of those taken in exchange, though the husband was seised of both during the coverture. The widow, however, may make her election out of which of the two estates she will take her dower. Co. Litt. 31, b.-Chitty.
It is now provided in England, by the statute 3 & 4 W.IV. c. 105, that when a husband shall die beneficially entitled to any land for an interest which shall not entitle his widow to dower out of the same at law, and such interest, whether wholly equitable or partly legal and partly equitable, shall be an estate of inheritance in possession or equal to an estate of inheritance in possession, (other than an estate in joint-tenancy,) then his widow shall be entitled to dower out of the same land; and that when a husband shall have been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same, although her husband shall not have recovered possession thereof, provided that such dower be sued for or obtained within the period during which such right of entry or action might be enforced; also that widows shall not be entitled to dower out of any land which shall have been absolutely disposed of by their husbands in their lifetime or by their wills.--STEWART.
23 The dower de la plus belle was shortly this. If a man holding lands in chivalry and in socage died leaving a widow and an heir under fourteen, the lord was entitled to the custody of the lands holden in chivalry, and the widow, as mother, of the lands in socage; but, as she would have to account for the profits of the lands so held by her, there was no provision for herself by way of dower. If then she brought a writ of dower against the lord to be endowed from the lands holden by him, he might plead all these facts,
scribed. 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 ecclesiæ:(f) which is where tenant in fee-*simple of *133] full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (Sir Edward Coke, in his translation of Lit tleton, adds) troth plighted between them, doth endow the 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 further ceremony. 4. Dower ex assensu patris;(9) which is only a species of dower ad ostium ecclesiæ, 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 ecclesiæ et ad ostium ecclesiæ; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuerint 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 issue;(*) and afterwards we hear no more of it. Under Henry the Second, according to Glanvil,(k) the dower ad ostium ecclesiæ 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 ecclesiæ 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 *134]
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 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 Litt. 237.
Ur. Hebr. l. 2, c. 27) there is, at this part of the matrimonial Ibid. 39.
service, the following rubric:-"Sacerdos interreget dotem
mulieris ; et, si terra ei in dotem detur, tunc dicatur psalmus (4) Bracton, 1.2, c. 39, 24.
iste,” &c. When the wife was endowed generally (ubi quis (0) Si mortuo viro uror ejus remanserit, et sine liberis unrem suam dotarerit in generali, de omnibus terres et fuerit, dotem suam habebit:--si vero usor cum liberis re tenementis. Bract. ib.) the husband seeins to have said, manserit, dotem quidem habebit, dum corpus suum legitime ** With all my lands and tenements I thee endow;" and then scrvaverit. Cart. Hen. I. A.D. 1001. Introd. to great charter, they all became liable to her dower. When he endowed her edit. Oxon. page iv.
with personalty only, he used to say, "With all my worldly
goods (or, as the Salisbury ritual has it, with all my worldly () Gr. Coustum. c. 101.
chattel) I thee endow;" which entitled the wife to her thirds, or (*) Bract. 1. 2, c. 39, 2 6.
pars rationabilis, of his personal estate, which is provided for (*) De questu sun, (Glanv. ib. de terris acquisitis et by magna carta, cap. 26, and will be further treated of in the acquirendis. Bract. ib.
concluding chapter of this book; though the retaining this
last expression in our modern liturgy, if of any meaning at (P) When special endowments were made ad ostium ec all, can now refer only to the right of maintenance which clesiæ, the husband, after affiance made and troth plighted, she acquires during coverture out of her husband's per. used to declare with what specific lands he meant to endow sonalty. his wife, (quod dotam eam de tali manerio cum pertinentiis, (9) A.D. 1216, c. 7, edit. Oxon. &c. Bract. ibid. ;) and therefore, in the old York ritual (Seld.
(9) Ibid. 40.
(*) L. 6, c. 1 and 2.
O Glanv. c. 2.
and pray that she might be adjudged to endow herself of the fairest of the lands held by her as guardian. And if judgment to that effect was given, the chivalry lands during the wardship were quit of dower, and she, in the presence of her neighbours, (perhaps a jury,) endowed herself by metes and bounds of the fairest part of the socage lands, to the value of a third part of the whole of both tenements.
This dower may be considered as another of the feudal hardships, which relieved the lord in chivalry of his share of a burthen commonly incident to all lands, and threw it nnfairly upon the socage lands,-in other words, upon the ward.-COLERIDGE,
neld in his lifetime:(r) yet in case of a specific endowment of less ad ostium ecclesiæ, the widow liad 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.(8) In Henry IV's time it was denied to be law, that a woman can be endowed of her husband's goods and chattels :(t) and, under Edward IV., Littleton lays it down *expressly, that a woman may be endowed ad ostium ecclesiæ with more than a third part:(u) and shall have her election, after her husband's
[*135 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 ecclesiæ and ex assensu patris, have since fallen into total disuse. 24
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 license; lest she should contract herself, and so convey part of the feud, to the lord's enemy.(x) This license 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 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 distreined to marry afresh, if she chooses to live without a husband; but shall not, however, marry against the consent of the lord; and further, 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 respect 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
[*136 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 ecclesiæ, which hath
(*) Assignetur autem ei pro dote sua tertia pars totius (*) Cap. 7. terræ mariti sui quæ sua fuil in vita sua, nisi de minori (a) It signifies, in particular, the forty days which persone dotata fuerit ad ostium ecclesiæ. C. 7, ibid.
coming from infected countries are obliged to wait before O Bract. ubi supra. Britton, c. 101, 102. Flet. I. 5, c. 23, they are permitted to land in England. R 11, 12
(6) Co. Litt. 34, 35. (P. 7 Hen. IV. 13, 14.
(4) F. N. B. 148. Finch, L. 314. Stat. Westm. 2. 13 Edw. Mirr. c. 1, 83.
(5) Co. Litt. 32.
2 39. F. N. B. 150. 141,
I. c. 7.
24 The dowers ad ostium ecclesia' and ex assensu patris have long since fallen into total disuse, and were lately abolished by the 3 & 4 W. IV. c. 105, & 13.-STEWART.
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. Whieh 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 titledeeds or evidences of the estate from the heir, until she restores them:(f) and, by the statute of Gloucester,(9) if a dowager alienes the land assigned her for *137]
dower, she forfeits it ipso *facto, and the heir may recover it by action.* 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 Coke;(0) “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 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 the 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 bad 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 settle. O Co. Litt. 39.
(4) Pig. of Recov. 66. ) 6 Edw. I. c.7.
(0) 1 Inst. 36.
25 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.-CHITTY.
26 « The mischief before the making of the 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 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 remedy of this mischief this statute gave the writ of entry in casu pro viso in the lifetime of tenant in dower.” 2 Inst. 309. But the statute was not intended to restrain tenant in dower from alienating for her own life; for such an estate wrought no wrong. Ibid.—Catty.
27 In some States dower is barred by a sale on execution for the debts of the husband. Davidson vs. Frew, 3 Deo. 3. Gardiner vs. Miles, 5 Gill. 94. Reed vs. Morrison, 12 S. & R. 18. London vs. London, 1 Humph. 1. A sale of land under a testamentary power for the payment of debts discharges the land from the dower of the testator's widow. Mitchell vs. Mitchell, 8 Barr, 126. An assignment in insolvency by a debtor under a compulsory process, and a conveyance by his trustee, do not divest his wife's right of dower, (Eberle vs. Fisher, 1 Harris, 326 ;) nor by a voluntary assignment in trust to pay debts, and the subsequent sale and conveyance by his assignees. Helfrich vs. Obermyer, 3 Harris, 113.
Where a devise or bequest to the widow in lieu of dower is accepted by her, it is a good bar to an action of dower; and that a devise was intended to be in lieu of dower may be inferred from the provisions of the will, as where it is inconsistent with the claim of dower; but the inconsistency must be plain. Jackson vs. Churchill. 7 Cow. 287. Allen vs. Pray, 3 Fairf. 138. Webb vs. Evans, 1 Binn. 565. Kennedy vs. Mills, 13 Wend. 553. Cauffman vs. Cauffman, 17 S. & R. 16. Whit vs. Whit, 1 Harris, 202.-SHARSWOOD.