jointure to the wife before marriage, she shall be forever precluded from her dower. 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 particular part of it.. If the jointure be made to her after inarriage, 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 shall then (by the provisions of the same statute) have her dower pro tanto at the common law.1*

†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

k 4 Rep. 1, 2.

1 These settlements, previous to marriage, seem to have been in use among the antient Germans, and their kindred nation the Gauls. 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, 7. 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 corum 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.

*Cited, 2 Dutch. 410; 4 Hen. & M. 44.

+ Quoted, 4 Hen. & H. 47.

2 BLACKST. - 20.

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 during the coverture.m But, on the other [139] 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 it's primitive state; whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower. And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow." Wherefore sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiæ, the most eligible species of any.†

NOTES OF THE AMERICAN EDITOR TO CHAPTER VIII.

(30) Of these estates for life, some are conventional, or expressly created by the act of the parties; others are merely legal, created by construction and operation of law, page 120.

Blackstone says: Estates for life are created by act of the parties or by act of law: titles accrue by descent or purchase.

"Blackstone often makes a distinction between rights resulting from the act and operation of the law, and rights resulting from the act of parties. Thus, in describing life-estates, he divides them into two general classes those which flow from the act of parties, and those which result from the act and operation of the law,

m Co. Litt. 31. a. F. N. B. 150.

n

Co. Litt. 36.

o Ibid. 37.

- Quoted, 2 Watts, 172.

+ Cited, 5 Conn. 464; 48 Iowa, 616.

such as dower and curtesy. This is all irrational and absurd. No legal right or duty whatever can proceed from any other source than the act and operation of the law. The acts of men who are the subjects of that law, whether these acts be involuntary, as deaths or births, or voluntary, as marriages, contracts, testaments, are only the occasions which give the rules of the law an opportunity to become effective and operative in a particular case. No one, not even Blackstone, would say that the death of the ancestor was the cause of the heir's becoming owner, or that the death of the husband was the cause of the widow's becoming a dowress. These instances are plain; but the case is not different when the act is voluntary. Two parties enter into a contract, their wills agree, their stipulations are mutual; but neither their wills nor their stipulations create the right devolving upon one, nor the duty resting upon the other. The law, seizing hold of this union of wills, this expressed assent of the parties, adds its compulsive energy to the personal stipulations, and creates the right on the one hand and the duty on the other. The mere words, the mere assent, the mere consideration of the contract, are in themselves nothing; it is only the law which comes in and declares that the fact of such words, such assent, such consideration, shall give rise to rights and duties; it is only the law, I say, which thus creates the obligation in a contract." (Pomeroy's Constitutional Law, 2591.) But Mr. Pomeroy would hardly deny the distinction between such rules of law as operate without reference to the act or will of the persons subject, and those that operate only when invoked. And that is all that Blackstone here has in view. On the other hand, many eminent lawyers have favored the extension of this classification so as to embrace all modes of acquiring not only life estates but fees, substituting it for the division into descent and purchase. (See Hargrave's note to Co. Litt. 18 b.)

Mr. Hargrave observes that instead of distributing all the several titles to land under the heads of purchase or descent, it would be more accurate to say that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law; and under the latter to consider, first descent, and then escheat, and such other titles not being by descent as yet, like titles by descent, accrue by mere act of law.

So we learn from Lord Coke (1 Inst. 2 b) that if an alien purchases lands he cannot hold them; the king is entitled to them: though in such case the king plainly takes neither by purchase (according to Mr. Hargrave's explanation) nor by descent. Again (1 Inst. 3 b), Lord Coke says: "A purchase is when one cometh to lands by conveyance or title; and disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not purchases." And it is equally clear they are not acquisitions by descent. And (in 1 Inst. 18 b) Lord Coke gives other instances of titles which, in strictness, if we admit Mr. Hargrave's explanation, can be referred neither to purchase nor descent, as escheats and tenancy by the curtesy or in dower. Upon the nature of title by escheat, see note 45, post, to page 244.

(31) If the wife be an idiot, the husband shall not be tenant by curtesy, page 127.

If the wife be such an idiot as to be incapable of seisin -even of actual seisin-it is hard to see how a valid marriage with her could exist. (Bishop on Married Women, ? 483.) Any degree of idiocy short of this could hardly prevent title from being vested in her by descent, if not by gift; and in most American states this would be enough to give curtesy. Nowhere in this country is there such a conflicting seisin as the king has by his prerogative in England.

(32) The seisin of the wife must be an actual seisin [to give the husband curtesy], page 127.

The difference between this requirement and that for a wife's dower, when "seisin in law of the husband will be as effectual as a seisin in deed" (p. 132), has often been spoken of as one of the arbitrary and technical rules of the antient law. It is on the contrary a proof of its equitable character. It was in the husband's power, not in the wife's, to reduce the seisin in law to an actual seisin. It was his duty to do this for his wife's sake and interest. If he neglected it, he was justly made to take the consequence by losing curtesy. But to cut off his wife's dower, if the husband omitted to take actual seisin where he had seisin in law, would not only punish her for his neglect, but would give him a chance to rob her of her dower for the benefit of his own heirs. This is the meaning of Blackstone's remark, page 132, on the "power" of each spouse.

(33) The husband by the birth of the child becomes tenant by the curtesy initiate, page 128.

The distinction between the husband's enjoyment of the wife's freehold before the birth of an heir, and his own freehold in her lands after that event, is clearly marked in the old books; but has often been overlooked of late, especially in reasoning from the cominon law to the effect of recent statutes taking away the husband's powers over the wife's property; e. g., Hatfield v. Sneden, 54 N. Y. 280. It was the birth of issue, not the death of the wife, that vested the husband's estate for his own life. Thus, after such birth the lord accepted his homage, which he could not safely do before that time, when the husband's interest might terminate before his own death. (F. N. B. 257.)

(34) Tenant in dower is when the husband is seised of an estate of inheritance and dies, page 129.

In most if not all the United States dower and curtesy