be endowed thereof. And, in short, a widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorporeal, under the restrictions before-mentioned; unless there be some special reason to the contrary. Thus, a woman shall not be endowed of a castle, built for defense of the realm: nor of a common without 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. 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 freebench. But, where dower is allowable, it matters not, though the husband 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, de la plus belle, having been abolished together with the military tenures, of which it was a consequence. 1. Dower by the common law; or that which is before described. 2. Dower by particular custom;e as that the wife should y This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seised of an estate 9 by survivorship, in consequence of which seisin his widow had a verdict for her dower. (Cro. Eliz. 503.) 9 Ninth edition inserts, in fee." z Co. Litt. 31. 3 Lev. 401. a Co. Litt. 32. 1 Jon. 315. b 4 Rep. 22. c Co. Litt. 32. d? 48, 49. e Litt. 37. - Quoted, 15 Johns. 465; 8 Am. Dec. 270; 2 Brev. 213; 5 Helsk. 459; 4 Sneed, 97; 21 Ga. 411; 3 Blackf. 8. Cited, 4 Mon. 341; 6 Watts, 417; 9 Allen, 26; 6 Heisk. 538; 11 Tex. 603; 40 Mich. 270. - Quoted, 92 N. C. 75. Cited, 3 How. (Miss.) 368. +-+ Quoted, 69 Ill. 487. - Quoted, 3 Hen. & M. 358; 4 Yerg. 226; 26 Am. Dec. 226. have half the husband's lands, or in some places the whole, and in some only a quarter. 3. Dower ad estium ecclesiæ: which is where tenant in fee-simple [133] of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (sir Edward Coke in his translation adds) troth plighted between them, doth endow his 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 farther ceremony. 4. Dower ex assensu patris; 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 in in facic ecclesiæ et ad ostium ecclesiæ; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuere conjugia.* It is curious to observe the several revolutions which the doctrine of dower has undergone, since it's 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 Glanvill, the dower ad f Ibid. 39. g Litt. 40. h Bracton. l. a. c. 39. 4. 1 Si mortuo viro uxor ejus remanserit, et sine liberis fuerit, dotem suam habebit; — si vero uxor cum liberis remanserit, dotem quidem habebit, dum corpus suum legitime servaverit. (Cart. Hen. I. A. D. 1101. Introd. to great charter. edit. Oxon. pag. iv.) k l. 6. c. 1. & 2 9 Ninth edition inserts, "of Littleton." *Cited, 2 N. H. 49. ostium ecclesia was the most usual species of dower; and here as well as in Normandy,1 it was binding upon the wife, if by her consented to at the time of marriage. Neither, in those days of feodal rigor, was the husband allowed to endow her ad ostium ecclesiæ with more than the third part of the lands whereof he 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 profits.m But if no specific dotation was made [134] 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:" 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 in lands which he afterwards acquired. In king John's magna carta, and the first charter of Henry III., no 1 Gr. Coustum. c. 101. m Bract. l. 2. c. 39. § 6. n De questu suo (Glanv. ibid.) de terris acquisitis et acquirendis (Bract. ibid.) o Glanv. c. 2. p When special endowments were made ad ostium ecclesiæ, the husband, after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife, quod dotat cum de tali manerio cum pertinentiis, etc. Bract. ibid. and therefore in the old York ritual (Seld. Ux. Hebr. 1. 2. c. 27.) there is, at this part of the matrimonial service, the following rubric; "sacerdos interroget dotem mulieris; et, si terra ei in dotem detur, tunc dicatur psalmus iste, etc." When the wife was endowed generally (ubi quis uxorem suam dotaverit in generali, de omnibus terris et tenementis; Bract. ibid.) the husband seems to have said, "with all my lands and tenements I thee When he endow" and then they all became liable to her dower. "with all my endowed her with personalty only, he used to say, worldly goods (or, as the Salisbury ritual has it with all my worldly chattel). I thee endow:" which entitled the wife to her thirds, or pars rationabilis. of his personal estate, which is provided for by magna carta, cap. 26. and will be farther treated of in the concluding chapter of this book; though the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her husband's personalty. q A. D. 1216. c. 7. edit. Oxon. 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 held in his lifetime: yet, in case of a specific endowment of less ad ostium ecclesiæ, 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 [135] expressly, that a woman may be endowed ad ostium ecclesiæ with more than a third part; " and shall have her election, after her husband's death, to accept such 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 ostium ecclesiæ and ex assensu patris have since fallen into total disuse. 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 licence; lest she should contract herself, and so convoy part of the feud to the lord's enemy.x This licence 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 r Assignetur autem ei pro dote sua tertia pars totius terræ maritt sui quæ sua fuit in vitu sua, nisi de minori dotata fuerit ad ostium ecclesiæ. c. 7. (Ibid.) s Bract. ubi supr. Britton. c. 101, 102. Flet. l. 5. c. 23. 11, 12. t P.7 Hen. IV. 13, 14. b remedy these oppressions, it was provided, first by the charter of Henry I., and afterwards by magna carta, 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 farther, 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. The particular lands to be held in dower, must be assigned 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 [136] thereof to the lord, and the widow is immediate tenant to the heir, by *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. 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 y ubt supra. z cap. 7. a It signifies, in particular, the forty days, which persons coming from infected countries are obliged to wait, before they are per mitted to land in England. b Co. Litt. 34, 35. c Co. Litt. 34, 35. **Quoted with an omission, 3 Green, 242. |