Sivut kuvina

of dower.

If the thing of which she is endowed be divisible, her dower must be set out by metes and bounds; but, if it be indivisible, she must be endowed specially; as, of the third presentation to a church, the third toll-dish of a mill, the third part of the profits of an office, the third sheaf of tithe, and the like.*

Upon preconcerted marriages, and in estates of considerable consequence, tenancy in dower happens very seldom for, the claim of the wife to her dower at the common law diffusing itself so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alteration of the antient law respecting dower ad ostium ecclesiæ, which hath occasioned the entire disuse of that species of dower, jointures have been introduced in their stead, as a bar to the claim at common law. Which leads me to inquire, lastly,

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 treason of her husband, and other disabilities before-mentioned, but also by detaining the title deeds, or evidences of the estate from the heir; until she restores them: and, by the statute of Glocester, if a dowager alienes the land assigned her for dower she forfeits it ipso [137] facto, and the heir inay recover it by action. A woman also may be barred of her dower, by levying a fine or suffering a recovery of the lands, during her coverture. But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.†

d F. N. B. 148. Finch. L. 314. Stat. Westm. 2. 13 Edw. I. c. 7.4 e Co. Litt. 32.

f Ibid. 39.

g 6 Edw. I. c. 7.

h Pig. of recov 66.

*-* Quoted, 1 Bay, 507; 1 Am. Dec. 627.

*Cited, 5 Conn. 464; 3 Halst. 129; 3 Brev. 82; 1 Bay, 506; 1 Am. Dec. 626; 48 Iowa, 616; 19 Gratt. 569.

+ Cited, 57 N. Y. 324; 6 Ill. 509, 514; 56 Ind. 19.

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; "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 Hen. VIII. c. 10. beforementioned; 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 sersed 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 [138] upon making such an estate in

i 1 Inst. 36.

*Cited, 3 Pick. 529. - Quoted, 4 Mason, 65. Cited, 3 Hen. & M. 377.

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 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 shall 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

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, 1. 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 pecunice conjunctim ratio habetur, fructusque servantur. Uter corum vita superavit, ad eum pars utriusque cum fructibus superiorum temporum pervenit." The dauphin's commentator on Cesar 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. 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.†


(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.)

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