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ment 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 possossed of the soil itself. In consequence of which legal seisin,2 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 forever
[*138 precluded from the 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 in satisfaction of her whole dower, and not of any
(%) 4 Rep. 1, 2.
28 It is established doctrine now that a wife is not dowable of a trust-estate, (God. win vs. Winsmore, 2 Atk. 526 ;) for dower is entirely a legal demand. Attorney-General vs. Scott, Ca. temp. Talb. 139. Yet a man may be tenant by the curtesy of his deceased wife's trust-estate, (Watts vs. Ball, 1 P. Wms. 108,) a seemingly partial diversity, for which lord Talbot, C., said he could see no reason, but which, as he found it settled, he did not feel himself at liberty to correct. Chaplin vs. Chaplin, 3 P. Wms. 234. Upon the principle that a widow is not dowable out of lands of which her husband had not, during the coverture, legal seisin, it is held that if his estate was subject to a mortgage in fee at the time of his marriage, and remained so during the whole continuance of the coverture, his widow cannot claim dower; for a right of redemption is merely an equitable title, (Casburne vs. Scarfe, 2 Jac. & Walk. 200. Dixon vs. Saville, 1 Br. 326 ;) and though in such case the widow of the mortgagee would, at law, be entitled to dower out of the estate, (Nash vs. Preston, Cro. Car. 191,) the court of chancery would not allow her to take advantage of that legal right, because it is a general rule that a trust-estate is considered, in equity, as belonging to the cestui que trust, not to the trustee. Finch vs. Earl of Winchelsea, I P. Wms. 278. Hinton vs. Hinton, 2 Ves. Sen. 634. Noel vs. Jevon, 2 Freem. 43. We have just seen, however, that this general rule is deviated from when its operation would be to let in claims of dower, though it is enforced whenever it goes to exclude such claims. See post, chapter 10, p. 158. It is also settled that title to dower attaches only when the husband has, at some time during the marriage, been seised in possession of the entire inheritance, not expectant upon the determination of a freehold interest carved out of it and interposed before the husband's remainder. Bates vs. Bates, 1 Lord Raym. 327.
Upon these principles there are a variety of modes by which conveyances can, by deed before a man's marriage, prevent title to dower from attaching upon his estate. The most approved mode is to limit the estate to such uses as the husband shall appoint, which gives him power over the whole fee; so that he may pass it to a purchaser without any fine, or the concurrence of any one else; and the purchaser, on the execution of the power, will be in from the original conveyance, and consequently paramount to the claims of the wife. But, in order to give the husband the immediate legal right to the possession and freehold and to the rents and profits, the next limitation is, in default of, or until execution of, the power of appointment, to the husband for life, with remainder to a trustee, his executors and administrators during the life of the husband; which will put the limitation over, in tail or in fee, in remainder. By the limitation to the husband for life, the legal estate will be vested in him ; so that if he die without making any appointment, the inheritance will vest in his heirs, or those to whom he may devise his property, unaffected by title of dower, and without any continuing estate in the trustee.
29 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.–Chitty.
30 Mr. Christian, in his annotation upon this passage of the text, says, "Or it inay 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.”
These authorities are correctly cited, but they are both antecedent to the statute of ‘rauds, which expressly enacts that no estates or interests of freehold shall be surren VOL. I.--32
lr Edward Coke very justly gives it the preference, as being more sure
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 ecclesiæ, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capable of consenting to it during coverture. 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 stall then by the provisions of the same statute) have her dower pro tanto at the common law.(?)
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 hers is almost the only estate on which, when derived from the king's debtor, the king cannot distrein for his debt; if contracted *139] during the coverture.(m) But, on the other *hand, a widow may enter
without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiæ, 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.(n) And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow.) Where
safe to the widow, than even dower ad ostium ecclesiæ, the most eligible species of any."
(1) These settlements, previous to marriage, seem to have fructusque servantur. Uter eorum vita superarit, ad eum been in use among the ancient Germans and their kindred pars utriusque cum fructibus superiorum temporum per nation the Gauls. Of the former Tacitus gives us this venit." The dauphin's commentator on Cæsar supposes that account :-“ Dotem non uzor marito, sed uxori maritus this Gaulish custom was the ground of the new regulation affert; intersunt parentes et propinqui, et munera probant," made by Justinian (Nov. 97) with regard to the provision (de Mor. Germ. c. 18;) and Cæsar (de bello Gallico, 1. 6, c. 18) for widows among the Romans; but surely there is as much has given us the terms of a marriage settlement among the reason to suppose that it gave the hint for our statutable Gauls, as nicely calculated as any modern jointure :"Viri, Jointures. quantus pecunias ab uxoribus dotis nomine acceperunt, ) Co. Litt. 31, &. F. N. B. 150. Lantas ex suis bonis, æstimatione facta, cum dotibus com (*) Co. Litt. 36. municant. Hujus omnis pecuniæ conjunctim ratio habetur, () Ibid. 37.
dered unless by deed or note in writing; but if it were allowed to be proved by oral testimony that a provision for wife was intended as a jointure, the effect would be to allow a surrender of her freehold title to dower to be proved by parol testimony; and there have been several decisions, since the statute, that such averment is not admissible. Charles ve Andrews, 9 Mod. 152. Tinney vs. Tinney, 3 Atk. 8. But it certainly is not necessary in equity at least) that the provision for the wife should be stated, in express words, to be in lieu of dower, if it can be clearly collected from the contents of the instrument that such was the intention. Vizard vs. Longdale, cited in 3 Atk. 8 and in 1 Ves. Sen. 55. A court of equity will be cautious, however, as to inferring an intention that a widon should be barred of dower by another provision when that intention is not distinctly manifested. Lord Dorchester vs. Lord Effingham, Coop. 323.--CHITTY.
31 As to the first requisite, I have ventured to insert two or three words (the jointure must be limited to) take effect, &c.) in the text, because lord Coke, from whom the passage is taken, (Co. Litt. 36,) is express that it is not enough that in fact and by accident the jointure takes effect immediately on the death of the husband, as if an interposed remainderman for life should die before the husband, but that the limitation of the deed must be to the wife immediately after the husband's death, where the estate is not joint. As to the third, though the position is true at law, yet it is now settled that a trust-estate, being equally certain and beneficial us a legal estate, a good equitable jointure to bar dower. Hargrave's note, 226. Co. Litt. 36. As to the fourth, lord Coke says it must either be expressed or averted to be B0; and in 4 Rep. 3 it is laid down that it need not be expressed, but may be averred to þe, &c.; that is, the deed being pleaded, and being silent as to its object, or stating ono not inconsistent with this, this may be stated and averred supplementally to have been the object or part of the object. --COLERIDGE.
32 Besides the method of jointures, the ingenuity of modern times devised other modes of preventing the wife from acquiring a title to dower. One of these has been most extensively employed, and is still applicable to the case of widows who were married on or before the 1st day of January, 1834, (the date fixed by the statute 3 & 4 W. IV. c. 105.) Under the old law, if an estate were conveyed simply to a man in fee-simple or in fees tail, the title of his widow to dower, in the absence of any bar by way of jointure, im.
OF ESTATES LESS THAN FREEHOLD.
Of estates that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance.
I. An estate for years is a contract for the possession of lands or tenements for some determinate period; and it takes place where a man letteth them to another for the term of a certain number of years, agreed apon between the lessor and the lessee, (a) and the lessee enters thereon.O) If the lease be but for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of.(c) And this may, not improperly, lead us into a short digression concerning the division and calculation of time by the English law.?
(a) We may here remark, once for all, that the termi in tail; the donee is he who receiveth it. He that granteth nations of“ -or" and "le" obtain, in law, the one an a lease is denominated the lessor; and he to whom it is active, the other a passive, signification; the former usually granted, the lessee. Litt. & 57. denoting the doer of any act, the latter him to whom it is (6) Ibid. 58. done. The feoffor is he that maketh a feoffment; the feoffee () Ibid. 67. is he to whom it is made. The donor is one that giveth lands
mediately attached, and he could not again sell the estate discharged of this claim without the concurrence of the wife in a fine or recovery, or, since the statute abolishing these modes of assurance, in a statutory deed of disposition or release. To avoid this inconvenience, it became usual, in the conveyance of estates, to limit the lands to the purchaser for his natural life, with remainder to a trustee in trust for him during his life, in case of his life-estate becoming forfeited or determined by any means during his lifetime, with remainder to the purchaser in fee. It followed, from the construction put upon these limitations by the courts of law, that the husband during his lifetime never had an estate of inheritance in possession in the lands, and consequently the wife's title to dower never attached. Through the medium of the statute of uses, hereafter to be explained, the purchaser was also clothed with a power of appointment, by which he could at once dispose of the fee-simple in any manner he pleased, and which effectually defeated the wife's claim. This plan, known among conveyancers as the limitation to uses to bar dower, is still used whenever it is necessary to convey lands to a married man whose marriage took place on or before the lst of January, 1834.
But, with regard to purchasers married since that day, this device, although sometimes employed for the purpose of obviating future questions as to the date of the marriage, is no longer necessary. For now a husband, whether he become entitled to an estate by actual conveyance or by inheritance or devise, may absolutely dispose of it either in his lifetime or by his will, or may charge or encumber it as he pleases, to the exclusion of his wife's title to dower. He may, either at the time of taking a conveyance to himself of the estate, or at any time thereafter, and either by deed or by his will, declare that his wife shall not be entitled to dower out of his estates; or he may declare that she shall be entitled to it out of some portion only of the property. The widow's right to dower may also, by the husband's will, be made subject to any condition, restriction, or direction which he chooses to impose ; and her right will be defeated by a devise to her of lands, or of any estate or interest therein, out of which she would otherwise bo dowable, unless a contrary intention shall be declared by the will.-KERR.
Of course our author will be understood to put this case of letting only as a particular instance of one mode in which an estate for years may be created. . See post, p. 143. There are obviously various ways in which such an estate may arise. Thus, where a person devises lands to his executors for payment of his debts, or until his debts are paid, the executors take an estate, not of freehold, but for so many years as are necessary to raise the sum required. Carter vs. Barnardiston, 1 P. Wms. 509. Hitchens vs. Hitchens, 2 Vern. 404. S. C. 2 Freem. 242. Doe vs. Simpson, 5 Fast, 171. Doe vs. Nicholls, 1 Barn. & Cress. 342. Though, in such case, if a gross sum ought to be paid at a fixed time, and the annual rents and profits will not enable them to make the payment within that time, the court of chancery will direct a sale or mortgage of the estate, as circumstances may render one course or the other most proper. Barry vs. Askham, 2 Vern, 26. Sheldon vs. Dormer, 2 Vern. 311. Green vs. Belchier, 1 Atk. 506. Allan vs. Backhouse, 1 Ves. & Bea. 75. Bootle vs. Blundell, 1 Meriv. 233.-Chitty.
2 In estimating the language which is necessary to constitute a lease, the form of words
of a years is a determinate and well-known period, consisting com
used is of no consequence. It is not necessary that the term lease should be used. Whatever is equivalent will be equally available. If the words assume the form of a license, covenant, or agreement, and the other requisites of a lease are present, they will be sufficient. Moore vs. Miller, 8 Barr, 283. Watson vs. O'Kern, 6 Watts, 368. Offerman ef. Starr, 2 Barr, 394. Grenough's Appeal, 9 Barr, 18. Mashier vs. Reding, 3 Fairf. 478. It is necessary that the contract should have reference to, and include, the possession of the premises by the tenant. An agreement by the owner of lands or farms, in possession, with a person to cultivate and sow the land, or some portion thereof, with corn or grain of some sort, on condition of the latter having a certain portion of the grain grown thereon, does not make such person a tenant. Greber vs. Kleckper, 2 Barr, 289. Caswell vs. Districh, 15 Wend. 379. Haywood vs. Miller, 3 Hill, 90. An agreement for a lease will be construed to be a present demise, if no future formal lease be contemplated, and especially if possession be taken under it. Jenkins vs. Eldridge, 3 Story, 325. -SHARSWOOD.
3 As to time, and the mode of computing it in general, see Com. Dig. tit. Ann. and tit. Temps ; Vin. Abr. tit. Time; Bac. Abr. Leases, E. 2 and 3; Burn, Ecc. L. Kalendar; Jacob. Dic. tit. Day, tit. Month, and tit. Year.
Before 1752, the year commenced on the 25th March, and the Julian calendar was used, and much inaccuracy and inconvenience resulted, which occasioned the introduction of the new style by the 24 Geo. II. c. 23, which enacts that the lst January shall be reckoned to be the first day of the year, and throws out eleven days in that year, from 2d September to the 14th, and in other respects regulates the future computation of time, with a saving of ancient customs, &c. See the statute set forth in Burn, Ecc. L. tit. Kalendar. It has been held that, in a lease or other instrument under seal, if the feast of Michaelmas, &c. be mentioned, it must be taken to mean New Michaelmas, and parol evidence to the contrary is not admissible, (11 East, 312 ;) but upon a parol agree ment it is otherwise. 4 B. & A. 588.
The year consists of three hundred and sixty-five days; there are six hours, within a few minutes, over in each year, which every fourth year make another day, viz., three hun. dred and sixty-six, and, being the 29th February, constitute the bissextile or leap year. Co. Litt. 135. 2 Roll. 521, 1. 35. Com. Dig. Ann. A. 24 Geo. II. c. 23, s. 2. Where a statute speaks of a year, it shall be computed by the whole twelve months, according to the calendar, and not by a lunar month, (Cro. Jac. 166 ;) but if a statute direct a prosecution to be within twelve months, it is too late to proceed after the expiration of twelve lunar months. Carth. 407. A twelvemonth, in the sir gular number, includes all the year ; but twelve months shall be computed according to twenty-eight days for every month. 6 Co. 62.
Half a year consists of one hundred and eighty-two days; for there shall be no regard to a part or a fraction of a day. Co. Litt. 135, b. Cro. Jac 166. The time to collate within six months shall be reckoned half a year, or one hundred and eighty-two days, and not lunar months. Cro. Jac. 166. 6 Co. 61.
So a quarter of a year consists but of ninety-one days; for the law does not regard the six hours afterwards. Co. Litt. 135, b. 2 Roll. 521, 1. 40. Com. Dig. Ann. A.
But both half-years and quarters are usually divided according to certain feasts or holidays, rather than a precise division of days, as Lady-day, Midsummer-day, Michaelmas-day, or Christmas, or Old Lady-day, (6th April,) or Old Michaelmas-day, (the 11th October.) In these cases, such division of the year by the parties is regarded by the law; and therefore, though half a year's notice to quit is necessary to determine a tenancy from year to year, yet a notice served on the 29th September to quit on 25th March, being half a year's notice according to the above division, is good, though there be less than one hundred and eighty-two_viz., one hundred and seventy-eight-days. 4 Esp. R. 5 and 198. 6 Esp. 53. Selw. N. P. Ejectment, V. Adams, 123.
As to the construction of the term “a year,” it was held that the 43 Geo. III. c. 84, which prohibits under a penalty a spiritual person from absenting himself from his bene fice for more than a certain time in any one year, means a year from the time when the action is brought for the penalty. 2 M. & S. 534.
A month is solar, or computed according to the calendar, which contains thirty or thirty; one days; or lunar, which consists of twenty-eight days. Co. Litt. 135, b. In temporal matters, it is usually construed to mean lunar; in ecclesiastical, solar or calendar. i Bla.
R. 450. 1 M. & S. 111. 1 Bingh. Rep. 307. In general, when a statute speaks of a month without adding “calendar," or other words showing a contrary intention, it shall be intended a lunar month of twenty-eight days. See cases, Com. Dig. Ann. B. 6 Term. Rep. 224. 3 East, 407. 1 Bingh. R. 307. And generally, in all matters temporal, the term "month" is understood to mean lunar; but in matters ecclesiastical, as non-residence, it is deemed a calendar month, because in each of these matters a different inode of
monly of 365 days; for though in bis*sextile or leap years it consists properly of 366, yet by the statute 21 Hen. III. the increasing day in the
computation prevails ; the term, therefore, is taken in that sense which is conforniable to the subject-matter to which it is applied, (2 Roll. Abr. 521, 51. Hob. 179. 1 Bla. R. 450. 1 M. & S. 117. 1 Bingh. R. 307. Com. Dig. Ann. R.;) and therefore, when a deed states calendar months, and in pleading the word calendar be omitted, it is not necessarily a variance. 3 Brod. & B. 186.
When a deed speaks of a month, it shall be intended a lunar month, unless it can be collected from the context that it was intended to be calendar. 1 M. & S. 111. Com. Dig. Ann. B. Cro. Jac. 167. 4 Mod. 185. So in all other contracts, (4 Mod. 185. 1 Stra. 446,) unless it be proved that the general understanding in that department of trade is that bargains of that nature are according to calendar months. 1 Stra. 652. 1 M. & S. 111. And the custom of trade, as in case of bills of exchange and promissory notes, has established that a month named in those contracts shall be deemed calendar. 3 Brod. & B. 187.
In all legal proceedings, as in commitments, pleadings, &c., a month means four weeks. 3 Burr. 1455. 1 Bla. R. 450. Doug. 463, 446. When a calendar month's notice of action is required, the day on which it is served is included and reckoned one of the days; and therefore, if a notice be served on 28th April, it expires on 27th May, and the action may be commenced on 28th May. 3 T. R. 623. 2 Campb. 294. And when a statute requires the action against an officer of customs to be brought within three months, they inean lunar, though the same act requires a calendar month's notice of action. 1 Bingh. R. 307.
A day is natural, which consists of twenty-four hours; or artificial, which contains the time from the rising of the sun to the setting. Co. Litt. 135, a. A day is usually intended of a natural day, as in an indictment for burglary we say, in the night of the same day. Co. Litt. 135, a. 2 Inst. 318. Sometimes days are calculated exclusively; as, where an act required ten clear days' notice of the intention to appeal, it was held that the ten days are to be taken exclusively both of the day of serving the notice and the day of holding the sessions. 3 B. & A. 581. A legal act done at any part of the day will in general relate to the first period of that day. 11 East, 498.
The law generally rejects fractions of a day. 15 Ves. 257. Co. Litt. 135, b. 9 East, 154. 4 T. R. 660. 11 East, 496, 498. 3 Co. 36, a. But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish for the purposes of justice; and I do not see why the very hour may not be so too where it is necessary and can be done; for it is not like a mathematical point, which cannot be divided. Per lord Mansfield, 3 Burr. 1434. 9 East, 154. 3 Coke Rep. 36, a. Therefore fraction of a day was admitted in support of a commission of bankruptcy, by allowing evidence that the act of bankruptcy, though on the same day, was previous to issuing the commission. 8 Ves. 30. So where goods are seized under a fieri facias the same day that the party commits an act of bankruptcy, is open to inquire at what time of the day the goods were seized and the act of bankruptcy was committed; and the validity of the execution depends on the actual priority. 4 Camp. 197. 2 B. & A. 586.
An hour consists of sixty minutes. Com. Dig. Ann. C. By a misprint in 2 Inst. 318, it is stated to be forty minutes. There is a distinction in law as to the certainty of stating a month or day, and an hour. When a fact took place, “circa horam” is sufficient; but not so as to a day, which must be stated with precision, though it may be varied from in proof. 2 Inst. 318.
It has been considered an established rule that, if a thing is to be done within such a time after such a fact, the day of the fact shall be taken inclusive. Hob. 139. Doug. 463. 3 T. R. 623. Com. Dig. Temps. A. 3 East, 407. And therefore where the statute 21 Jac. I. c. 19 s. 2, enacts that a trader lying in prison two months after an arrest for debt shall adjudged a bankrupt, that includes the day of arrest. 3 East, 407. When a month's notice of action is necessary, it begins with the day on which the notice is given, (3 T. R. 623 ;) and if a robbery be committed on the 9th October, the action against the hundred must be brought in a year inclusive of that day. Hob. 139. But where it is limited within such a time after the date of a deed, &c., the day of the date of the deed shall be taken exclusive; as if a statute require the enrolment within à specified time after date of the instrument. Hob. 139. 2 Camp. 294. Cowp. 714. Thus, where a patent dated 10th May contains a proviso that a specification shall be enrolled within one calendar month next and immediately after the date thereof, and the specification was enrolled on the 10th June following, it was held that the month did not begin to run till the day after the date of the patent, and that the specification was in time. 2 Camp. 294.
However, in a case in equity, the master of the rolls, after considering many of the decisions, said, upon the first part of this rule, that whatever dicta there may be that,