a recovery of the lands, during her coverture. () (30) But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII, c. 10. (31)

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 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 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 [*138] to the wife before marriage, she shall be forever precluded from her dower. (k) But then these four requisites must be punctually observed: 1. The

mischief was, that when the feoffee, or 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 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. Id.]

(30) The most usual mode of barring dower in America is by the wife joining with the husband in a deed of conveyance of his lands, and acknowledging the same in such manner as the statute prescribes shall be effectual for this purpose. The statutes are not uniform in their provisions, but generally they provide for some examination of the wife by an officer, separate and apart from the husband, in order to make certain that she is not acting under compulsion. These provisions must be strictly complied with, or the bar will not be effectual. Elwood v. Klock, 13 Barb. 50; Sibley . Johnson, 1 Mich. 380; Barstow v. Smith, Wal. Ch. 294; Jordan v. Corey, 2 Ind. 385; Witter v. Biscoe, 8 Eng, 422; Manning v. Laboree, 33 Me. 33. The wife must be twenty-one years of age to render the act effectual, as the statute only elieves her from the disability of coverture. Hughes . Watson, 10 Ohio, 127; Jones v. Todd. 2 J. J. Marsh. 359; Thomas . Gammel; 6 Leigh, 9; Priest e. Cummings, 16 Wend. 617, and 20 d. 338; and the deed ought to contain words of release on her part. Catlin v. Ware, 9 Mass. 218; Stevens v. Owen, 25 Me. 94; Leavitt v. Lamprey, 13 Pick. 352; Witter v. Biscoe, 8 Eng. 122. But in some states this is not necessary. See Burge v. Smith, 7 Fost. 332. The wife cannot release her contingent right of dower by parol. Keeler v. Tatnell, 3 N. J. 62. agreement by parol with one to whom as administratrix on the estate of her husband she sells the land, that she will not claim dower in it, will not be binding upon her. Wright . De Groff, 14 Mich. 164. But see as to this, Connolly v. Branstler, 3 Bush. 702. In some of the states if the husband's estate is sold for the satisfaction of his debts, the wife's right of dower is gone; but this is not the general rule. The foreclosure of a mortgage given by the husband before the marriage, or given afterwards and executed by the wife in due form of law, will bar her right. Farwell v. Cotting, 8 Allen, 211; Nottingham v. Calvert, 1 Ind. 527; Lewis v. Smith, 9 N. Y. 502. By agreement in a deed of separation, a wife may also bar herself of all claim to dower. Stephenson v. Osborne, 41 Miss. 119; Hitner's Appeal, 54 Penu. St. 110.

And even her

(31) Upon the subject of Jointure see Cruise Dig. 196 and index, tit. Jointure, and 1 Washb Real Prop. Book 1, ch. 8. Jointures are uncommon in the United States, and questions concerning them arise but seldom.

jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not per auter vie, or for any term of years, or other smaller estate. (32) 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 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. (34) And if, by any fraud or accident, a

(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 since the Statute of Frauds, which expressly enacts, that no estates or interests of freehold shall be surrendered unless by a deed or note in writing, there have been several decisions that such averment is not admissible. Charles v. Andrews, 9 Mod. 152. Tinney v. Tinney, 3 Atk. 8.]

(34) [It is well established, as general doctrine, that since dower is a legal right, the intention to exclude that right, by a devise or bequest of something else, must be demonstrated, if not by express words, at least by (what appears to the court to amount to) necessary implication. It is only where the claim of dower would be inconsistent with the will, or plainly tend to defeat some other part of the testator's disposition of his property, that the widow can be compelled to elect whether she will take her dower, or the interest devised to her. Strahan v. Sutton, 3 Ves. 252; Thompson v. Nelson, 1 Cox, 447. Of course, acceptance of a bequest of personalty can never operate in bar of dower, unless an intention to that effect can be unequivocally established: Ayres v. Willis, 1 Ves. Sen. 230; nor will a devise to the testator's widow of part of those lands out of which she might claim dower, exclude that claim with respect to the remainder of such lands: Lawrence v. Lawrence, 1 Br. P. C. 591; S. C., 2 Freem. 234; Lord Dorchester v. Lord Effingham, Coop. 324; Hitchins v. Hitchins, 2 Freem. 241; unless the terms of the devise express, or clearly imply, that it was the testator's intent, the bequest of part of the lands, if accepted, should be in satisfaction of dower out of the remainder: Chaliners v. Storil, 2 Ves. and Bea. 224; Dickson v. Robinson, Jacob's Rep. 503; and a devise of a contingent remainder to a woman for life, in the whole of the lands out of which her dower is demandable, it is well settled, will not, by implication, exclude her immediate title to dower; for there is nothing inconsistent in the two interests. Incledon v. Northcote, 3 Atk. 435. In short, wherever a clear, incontrovertible result does not arise from the testator's will, that he meant to exclude his widow from dower, she will not be put to her election; he may not have known that she would, under the circumstances, be dowable; but this will not be enough to exclude her right: it must appear that he did know it, and meant to bar her; or at least, that her demand of dower would be repugnant to the dispositions he has made. French v. Davies, 2 Ves. Jun. 577, 581. Although a testator has devised his estate to trustees, charged with an annuity, or a gross sum, to his widow; still, as a wife's title to dower is paramount to the devise, a Court of equity will not readily infer that, because the testator has given all his property to trustees, it was necessarily his intention to give them that which was not his. Foster v. Cook, 3 Br. 351; Pitts v. Snowden, 1 Br. 292; Greatrex v. Cary, 6 Ves. 616. But, although this would be inadmissible as a general construction, circumstances may justify it: Druce v. Dennison, 6 Ves. 400; Judd v. Pratt, 13 Ves. 174; Attorney-General v. Grote, 3 Meriv. 320; Penticost v. Ley, 2 Jac. and Walk. 210; Hewson v. Reed, 5 Madd. 451; Forester v. Cotton, 1 Eden, 535; Dillon v. Parker, 1 Swanst. 374; if the estates would be insufficient to satisfy the charges expressly imposed upon them, in case the title to dower were sustained, that might show an intention to bar the claim of dower; and, it seems, a reference to ascertain that fact will be granted. Pearson v. Pearson, 1 Br. 292; French v. Davies, 2 Ves. Jun. 580. Still the admissibility of parol evidence to enlarge the effect of the terms used in a will, though not in all cases absolutely rejected, is strongly discountenanced by the very highest authority. Doe v. Chichester, 4 Dow, 89, 93.

A legacy given by a testator to his widow, as the price of her release of dower, must be fully paid before any mere legatees can claim: Burridge v. Bradyll, 1 P. Wms. 127; Davenhill v. Fletcher, Ambl. 245; for the widow, in such case, is a purchaser, and justly entitled to a preference: Blower v. Morrett, 2 Ves. Sen. 242; and it will not vary the principle of the case, to show that the legacy was not the only consideration for the release of dower. Heath v. Dendy, 1 Russ. 545.

Where a widow has accepted, and continued in the enjoyment of an interest, between which and her title to dower, she might have elected, that election, though she has not expressly declared it, will be fairly inferred from such circumstances: Ardesoife v. Bennett, 2 Dick. 467;

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. (7) (35)

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 dur[ *139 ] ing the coverture. (m) But, on the other 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 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. (0) Wherefore Sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesia, the most eligible species of any.

CHAPTER IX.

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 upon between the

(1) These settlements, previous to marriage, seem to have been in use among the ancient Germans, and their kindred nation the Gaus. 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 Cæsar (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, æstimatione facta, cum dotibus communicant. Hujus omnis pecuniæ conjunctim ratio habetur, fructusque servantur. Uter eorum vita superavit, ad eum pars utriusque cum fructibus superiorum temporum pervenit." The dauphin's commentator on Cæsar 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. (n) Co. Litt. 36. (0) Ibid. 37.

and her partial accession to a settlement may be held an election to abide by the whole. Milner r. Lord Harewood, 17 Ves. 277. But, generally speaking, acts done by a party before he, or she, is fully informed of his or her rights, will not amount to an election. Pasey v. Desbouverie, 3 P. Wms. 321; Chalmers v. Storil, 2 Ves. and Bea. 225; Dillon v. Parker, 1 Swanst. 381; Whistler v. Webster, 2 Ves. Jun. 371; Edwards v. Morgan, M'Clel. 551.

A trust estate may constitute a good equitable jointure in bar of dower; and if a jointure be made of freehold estates in trust for an infant, this will, in equity, be a bar to her claim of dower. It was, indeed, once doubted whether a jointure, however formal, settled on an infant before marriage, was a bar to dower; but it has been determined that such a jointure is binding upon the infant, who cannot waive it after her husband's death, and claim her dower. Earl of Buckingham v. Drury, 2 Eden, 73.]

(35) In addition to the modes of barring dower specified in the text may be mentioned that by non-claim; where the widow fails to assert her right within the time allowed by the statute of limitations. It has also been held that if the lands have been appropriated to public uses under the right of eminent domain, in the lifetime of the husband, the right to dower is gone: Moore v. New York, 8 N. Y. 110; and the same is true where they have been dedicated to public uses by the husband. Guynne v. Cincinnati, 3 Ohio, 24.

lessor and lessec, (a) and the lessee enters thereon. (b) (1) 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.

The space of a year (2) is a determinate and well-known period, consisting

(a) We may here remark, once for all, that the termination of “—or” and “—ee” (obtain in law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the feoffee is he to whom it is made; the donor is one that giveth lands in tail; the donce is he who receiveth it; he that granteth a lease is denominated the lessor; and he to whom it is granted the lessee. (Litt. § 57

(b) Ibid, 58.

(c) Ibid, 67.

(1) [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 v. Barnardiston, 1 P. Wms. 509; Hitchens v. Hitchens, 2 Vern. 404; S. C., 2 Freem. 242; Doe v. Simpson, 5 East, 171; Doe v, Nicholls, 1 Barn. and 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. Berry v. Askham, 2 Vern. 26; Sheldon v. Dormer, id. 311; Green v. Belchier, 1 Atk. 506; Allen v. Backhouse, 1 Ves. and Bea. 75; Bootel v. Blundell, 1 Meriv. 233.]

So if the vendor put the vendee, under an executory contract for the purchase of lands, into possession, and by the contract the latter is to have possession so long as he makes without default the payments specified in the contract, this makes him tenant for years, and not at will merely. White v. Livingston, 10 Cush. 259.

One of the most difficult questions in this connection often is, whether a particular instrument operates as a present demise of the premises, or a contract for a future one. Mr. Washburn, in 1 Washb. on Real Property, 300 et seq., has collected the cases in which this question has arisen, and has shown the difficulty in reconciling them all. The question, he says, seems to turn on whether the writing shows that the parties intend a present demise and parting with the possession by the lessor to the lessee; for if it does, it will operate as a lease, though it is contemplated that a future writing should be drawn more explicit in its terms. And it may be a good lease, in distinction from an executory contract to lease, though it be to commence in futuro. Whitney v. Allaire, 1 Comst. 305, 311. But if a fuller lease is to be prepared and executed before the demise is to take effect, and possession given, it is an agrecment for a lease, and not a lease which creates an estate. Aiken v. Smith, 21 Vt. 172; People v. Gillis, 24 Wend. 201; Jenkins v. Eldredge, 3 Story, 325; Buell v. Cook. 4 Conn. 238."

To constituto one a tenant for years he must have an interest in the land, and a right to its possession and use. Maverick v. Lewis, 3 McCord, 211; Adams v. McKesson, 53 Penn. St. 83. One who puts in a crop upon the land of another upon shares, is not tenant for years, but only tenant in common of the crop, and the possession of the land, except so far as may be neces sary to enable him to cultivate and harvest the crop, is in the owner of the land. Bradish v. Schenck, 8 Johns. 151; Moulton v. Robinson, 7 Fost. 550; Putnam v. Wise, 1 Hill, 234; Aiken v. Smith, 21 Vt. 172. But if the party is put in possession of the land, and is to pay rent in produce, he is tenant for years, as much as if he paid in money. Newcomb v. Ramer, 2 Johns, 421; Putnam v. Wise, 1 Hill, 234; Gould v. School District, 8 Minn. 431; Dixon v. Niccolls, 39 Ill., 372.

(2) [Before 1752, the year commenced on the 25th of 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 1st January shall be reckoned to be the first day of the year, and throws out eleven days in that year, from the 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 agreement it is otherwise. 4 B. and 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 makes another day, viz.: three hundred and sixty-six, and being the 29th February, constitute the bissextile or leap-year. 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 twelve-month, in the singular 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

[ *141] commonly of 365 days; for though in *bissextile or leap-year, it consists properly of 366, yet, by the statute 21 Hen. III, the increasing day in the leap-year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacks, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is always one uniform per

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 the 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 id. 53.

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. 1 Bla. R. 450; 1 M. and S. 111; 1 Bing. 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 mode of computation prevails; the term, therefore, is taken in that sense which is conformable to the subject matter to which it is applied; 2 Roll. Ab. 521, 51; Hob. 179; 1 Bla. R. 450; 1 M. and S. 117; 1 Bing. R. 307; Com. Dig. Ann. B.; and, therefore. when a deed states calendar months, and in pleading the word calendar be omitted, it is not necessarily a variance. 3 Brod. and 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, and 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. and 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, and B. 187.

In all legal proceedings, as in commitments, pleadings, &c., a month means four weeks. 3 Bur. 1455; 1 Bla. R. 450; Dougl. 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 of April. it expires on 27th of May, and the action may be commenced on 28th of 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 mean lunar, though the same act requires a calendar month's notice of action. 1 Bing. 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. and 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 Ld. 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, it is open to inquire at what time of the day the goods were seized and the act of