of a specific endowment of lefs ad oftium ecclefiae, 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. In Henry IV's time it was denied to be law, that a woman can be endowed of her husband's goods and chattels and, under Edward IV, Littleton lays it down exprefsly, that a woman may be endowed ad oftium ecclefiae with [135] more than a third part"; and fhall have her election, after her husband's death, to accept fuch dower or refuse it, and betake herself to her dower at common law ". Which state of uncertainty was probably the reason, that these specific dowers, ad oftium ecclefiae and ex affenfu patris, have fince fallen into total difufe. I PROCEED, therefore, to confider the method of endowment, or affigning dower, by the common law, which is now the only ufual fpecies. By the old law, grounded on the feodal exactions, a woman could not be endowed without a fine paid to the lord; neither could fhe marry again without his licence; left the fhould contract herself, and fo convey part of the feud, to the lord's enemy. This licence the lords took care to be well paid for; and, as it feems, would fometimes force the dowager to a second marriage, in order to gain the fine. But, to remedy thefe oppreffions, it was provided, first by the charter of Henry Iy, and afterwards by magna carta, that the widow fhall pay nothing for her marriage, nor fhall be diftreined to marry afresh, if the chooses to live without a husband; but fhall not however marry against the confent of the lord; and farther, that nothing fhall be taken for affignment of the widow's dower, but that the fhall remain in her husband's capital manfionhoufe for forty days after his death, during which time her dower fhall be affigned. These forty days are called the widow's quarentine; a term made use of in law to fignify the Brat. ubi fupr. Britton. c. 101, 102. Flet. . 5. c. 23. § 11, 12. *P. 7 Hen. IV. 13, 14. §39. F. N. B. 150. w § 41. * Mirr. c. 1. § 3- z cap. 7. number Book II. number of forty days, whether applied to this occafion, or. any other. The particular lands, to be held in dower, must be affigned by the heir of the husband, or his guardian; not only for the fake of notoriety, but also to entitle the lord of the fee to demand his fervices of the heir, in refpect of the lands fo holden. For the heir by this entry becomes tenant [136] thereof to the lord, and the widow is immediate tenant to the heir, by a kind of fubinfeudation, or under-tenancy, completed by this inveftiture or affignment; which tenure may still be created, notwithstanding the ftatute of quia emptores, because the heir parts not with the fee-fimple, but only with an eftate for life. If the heir or his guardian do not affign her dower within the term of quarentine, or do affign it unfairly, she has her remedy at law, and the fheriff is appointed to affign it. Or if the heir (being under age) or his guardian affign more than fhe ought to have, it may be afterwards remedied by writ of admeasurement of dower d. If the thing of which she is endowed be divifible, her dower must be fet out by metes and bounds; but if it be indivifible, fhe must be endowed specially; as of the third prefentation to a church, the third toll-difh of a mill, the third part of the profits of an office, the third fheaf of tithe, and the like ". UPON preconcerted marriages, and in eftates of confiderable confequence, tenancy in dower happens very feldom : for, the claim of the wife to her dower at the common law diffufing itfelf fo extenfively, it became a great clog to alienations, and was otherwife inconvenient to families. Wherefore, fince the alteration of the antient law respecting dower ad oftium ecclefiae, which hath occafioned the entire disuse of that species of dower, jointures have been introduced in their ftead, as a bar to the claim at common law, Which leads me to inquire, laftly, a It fignifies, in particular, the forty c Co. Litt. 34, 35. d F. N. B. 148. Finch. L. 314. Stat. Weftm. 2. 13 Edw. 1. c. 7. e Co. Litt, 32, 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 treafon of her husband, and other difabilities before-mentioned, but alfo by detaining the title deeds, or evidences of the eftate from the heir, until fhe reftores them: and, by the ftatute of Glocefter, if a dowager alienes the land affigned her for dower the forfeits it ipfo [137] facto, and the heir may recover it by action. A woman alfo may be barred of her dower, by levying a fine, But the moft recovery of the lands, during her coverture 1. ufual method of barring dowers is by jointures, as regulated by the ftatute 27 Hen. VIII. c. 10. or suffering a A JOINTURE, which, ftrictly speaking, fignifies a joint eftate, limited to both husband and wife, but in common acceptation extends alfo to a fole eftate, limited to the wife only, is thus defined by fir Edward Coke'; "a competent "livelihood of freehold for the wife, of lands and tene"ments; to take effect, in profit or poffeffion, prefently after "the death of the hufband; for the life of the wife at leaft." This description is framed from the purview of the statute 27 Hen. VIII. c. 1o. before-mentioned; commonly called the ftatute of uses, of which we shall speak fully hereafter. At prefent I have only to obferve, that before the making of that ftatute, the greatest part of the land of England was conveyed to uses; the property or poffeffion of the foil being vested in one man, and the use, or profits thereof, in another; whofe directions, with regard to the difpofition thereof, the former was in confcience obliged to follow, and might be compelled by a court of equity to obferve. Now, though a husband had the ufe of lands in abfolute fee-fimple, yet the wife was not entitled to any dower therein; he not being seised thereof: wherefore it became usual, on marriage, to fettle by exprefs deed fome special eftate to the use of the husband and his wife, for their lives, in joint-tenancy, or jointure; which fettlement would be a provision for the wife in cafe she f Ibid. 39. # 6 ¿dw, I. c. 7. h Pig. of recov. 66. i Inft. 36. furvived furvived her husband. At length the ftatute of uses or dained, that such as had the use of lands, fhould, to all intents and purposes, be reputed and taken to be abfolutely feifed and poffeffed of the foil itself. In confequence of which legal feifin, all wives would have become dowable of fuch lands as were held to the use of their husbands, and also entitled at the fame time to any special lands that might be fettled in jointure: had not the fame ftatute provided that [158] upon making fuch an estate in jointure to the wife before marriage, fhe fhall be for ever precluded from her dower*. But then these four requifites 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 eftate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and fo in the deed particularly expreffed to be (12), in fatisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, fhe has her election after her husband's death, as in dower ad oftium ecclefiae, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capable of confenting to it during coverture (13). And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of poffeffion, the shall then * 4 Rep. 1, 2. (12) Or it may be averred to be, 4 Rep. 3. An affurance was made to a woman, to the intent it should be for her jointure, but it was not fo expreffed in the deed. And the opinion of the court was, that it might be averred that it was for a jointure, and that fuch averment was traversable. Owen, 33. (13) And where a devife is expreffed to be given in lieu and satis faction of dower, or where that is the clear and manifeft intention of the teftator, the wife fhall not have both, but fhall have her choice. Harg. Co. Litt. 36. b. (by (by the provifions of the fame ftatute) have her dower prø tanto at the common law 1(14). THERE are fome advantages attending tenants in dower that do not extend to jointreffes; and fo vice versa, jointresses are in fome refpects more privileged than tenants in dower. Tenant in dower by the old common law is fubject to no tolls or taxes; and hers is almoft the only eftate on which, when derived from the king's debtor, the king cannot diftrein for his debt; if contracted during the coverture ". But, on the other hand, a widow may enter at once, without any formal pro-[ 139 ] cefs, on her jointure land; as fhe alfo might have done on dower ad oftium ecclefiae, which a jointure in many points refembles; and the refemblance was ftill greater, while that species of dower continued in it's primitive state: whereas no small trouble, and a very tedious method of proceeding, ! These fettlements, previous to marriage, feem to have been in ufe among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. "Dotem non uxer marito, fed uxori maritus affert: interfunt parentes et propinqui, et mune"ra probant." (de mor. Germ. c. 18.) And Cæfar (de bello Gallico, 1. 6. c. 18.) has given us the terms of a marriage fettlement among the Gauls, as nicely calculated as any modern jointure. "Vii, quantas pecunias ab uxoribus do. "tis nomine acceperunt, tantas ex fuis bonis, aeftimatione facta, cum dotibus.com "municant. Hujus omnis pecuniae con- m Co. Litt. 31. a. F. N. B. 150. (14) It has been determined, that if a woman, who is under age at the time of marriage, agrees to a jointure and fettlement in bar of her dower, and her diftributive fhare of her husband's perfonal property, in cafe he dies inteftate, fhe cannot afterwards waive it; but is as much bound, as if the were of age at the time of marriage. Lord Northington had decreed the contrary; but his decree was upon both points reverfed. Drury Drury, 4 Brown's P. C. 570. |