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Its origin.

Dower is called, in Latin, by the foreign jurists doarium, but by Bracton and our English writers dos ; which, among the Romans, signified the marriage portion which the wife brought to her husband ; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance ; nor, indeed, is there any thing, in general, more different than the regulation of landed property according to the English and Roman laws. Dower out of lands seems, also, to have been unknown in the early part of our Saxon constitution ; for, in the laws of King Edmund,a the wife is directed to be supported wholly out of the personal estate. Afterward, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands, with a proviso that she remained chaste and unmarried ;b as is usual, also, in copyhold dowers, or free-bench. Yet somec have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we can not expect any feudal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens tertiad and dotalitium) by the Emperor Frederic the Second, e who was cotemporary with our King Henry III. It is possible, a Wilk., 75.

c Wright, 192.
b Somner., Gavelk., 51. Co. Litt., 33. d Crag., l. 2, t. 22, Ø 9.
Bro., Dower, 70.

e Ibid.

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shall not be permitted to participate in the benefit of the enhanced value of the land arising from the increase of population, and the general cultivation and improvement of the country in the vicinity, since the sale by her husband, or since his death; but must content herself with only so much of the lands in which dower is claimed as is equal in value to one third of the value of the whole at the time of the alienation thereof, or at the time of the death of the husband. Dorchester v. Coventry, 11 Johns. R., 510; Shaw v. White, 13 Id., 179; Walker v. Schuyler, 10 Wendell, 480.) With great deference it is submitted, that the three cases just referred to can not be supported upon principle, and are not warranted by the statute denying to the widow the benefit of improvements, upon which they profess to be founded; nor are they supported by the ancient English authorities cited by the judges, which refer solely to improvements made subsequent to the alienation by the husband. In Gore v. Brazier, 3 Mass. R., 544, Ch. Justice Parsons was inclined to the opinion that the widow ought to be al. lowed for the increased value arising from extrinsic causes; and so it was held in Pennsylvania, in Thompson v. Merron, 5 Serg. & Rawle, 289, although it was said that the widow could not take or claim any benefit from improvements made by the purchaser: which doctrine was declared by Mr. Justice Story, 3 Mason's R., 375, to stand upon solid principles and the general analogies of the law. Chancellor Kent, also, concedes the better and more reasonable American doctrine to be, that the improved value of the land, for which the widow is to be excluded in the assignment of her dower as against a purchaser from her husband, is that which has arisen from the labor and money of the owner, and not from that which has arisen from extrinsic or general causes.-(4 Kent's Comm., 68.)

The widow is also entitled to recover as damages, for the withholding of her dower, one third of the annual value of the mesne profits of the land from the time of her husband's death, in an action against his heirs, and from the time of demanding her dower in actions against other persons; but in no case can sho recover for more than six years' profits, nor are such damages estimated for the use of permanent improvements made after the death of the husband.-(1 R. S., 742, Ø 19, 20, 21.)

be endow.

lost.

therefore, that it might be with us the relic of a Danish custom; since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by [130 ] the Vandals. However this be, the reason which our law gives for adopting it is a very plain and sensible one ; for the sustenance of the wife, and the nurture and education of the younger children.g

In treating of this estate, let us, first, consider who may be endowed ; secondly, of what she may be endowed ; thirdly, the manner how she shall be endowed ; and, fourthly, how dower may be barred or prevented.

1. Who may be endowed. She must be the actual wife of 1. Who may the party at the time of his decease. If she be divorced a ed. vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos.h* But a divorce a mensa et thoro Dower, how only doth not destroy the dower; no, not even for adultery itself by the common law.k Yet now, by the statute Westm. 2, if a woman voluntarily leaves (which the law calls eloping from her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her." It was formerly held that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the courtesy ;m but, as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot can not marry, being incapable of consenting to any contract, this doctrine can not now take place. By the ancient law the wife of a person attainted of treason or felony could not be endowed ; to the intent, says Staunforde,n that, if the love of a man's own life can not restrain him from such atrocious acts, the love of his wife and children may; though Brittono gives it another turn, viz., that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. VI., c. 12, abated [ Mod. Un. Hist., xxxii., 91.

dotalitii et trientis ex bonis mobilibus & Bract., l. 2, c. 39. Co. Litt., 30. viri:-(Stiernh., l. 3, c. 2.) k Bract., l. 2, c. 39, \ 4.

| 13 Edw. I., c. 34. i Co. Litt., 32.

m Co. Litt., 31. k [3 P. W., 276; 3 Moo. & P.,

» P. C., b. 3, c. 33. Yet, among the ancient Goths, an adulteress was punished by the loss of her

408.]

o C. 110.

(36) And in a case where John de wife was not entitled to dower. (2 Camoys had assigned his wife, by deed, Inst., 435.) This is an indictablo ofto Sir William Paynel, knight, which fense, being a great public misdemeanLord Coke calls concessio mirabilis et in- or. (See vol. iv., p. 64, n.)—[Christaudita, it was decided in Parliament, a ian.] See 3 Moo. & P., 399. few years after the statute was enacted, notwithstanding the purgation of the (37) Ante, vol. i., 438; stat. 15 Geo. adultery in the spiritual court, that the II., c. 30.

* Such, also, is the law in New York.-(1 R. S., 741, 8.)

[131] the rigor of the common law in this particular, and allowed

the wife her dower. But a subsequent statutep revived this severity against the widows of traitors, who are now barred of their dower (except in the case of certain modern treasons relating to the coin), but not the widows of felons." An alien,

also, can not be endowed,'** unless she be queen consort; for At what no alien is capable of holding lands. The wife must be above

nine years old at her husband's death, otherwise she shall not be endowed ;s though in Bracton's time the age was indefinite, and dower was then only due si uxor possit dotem promereri,

et virum sustinere.t 2. Of what 2. We are next to inquire of what a wife may be endowed. Widow.may And she is now by law entitled to be endowed of all lands and

tenements of which her husband was seized" in fee-simple, or fee-tail, at any time during the coverture, and of which any issue which she might have had might, by possibility, have been heir.u"Therefore, if a man, seized in fee-simple, hath a

age.

ed.

P 5 & 6 Edw. VI., c. 11.

9 Stat. 5 Eliz., c. 11; 18 Eliz., c. 1; 8 & 9W. III., c. 26; 15 & 16 Geo. II., c. 28.

r Co. Litt., 31.
8 Litt., Ø 36.
1 L. 2, c. 9, $ 3.
u Litt., Ø 36, 53.

(38) Stat. 54 Geo. III., c. 145. which he had of the whole of the estate

during the husband's lifetime, is better (39) Lord Hale's MSS. contain the than that of the wife. (Co. Litt., 37.) following note upon this subject: “ Nota. Another requisite omitted in the text Anciently, a woman alien was not dow- is, that the estate of inheritance should able; but by special act of Parliament be in possession, and not in remainder not printed (Rot. Parl., 8 Hen. V., n. 15), or reversion expectant on a particular all women aliens, who from thenceforth estate of freehold. should be married to Englishmen by li- If the inheritance of the husband is cense of the king, are enabled to de- expectant upon a term of years, then, as mund their dower after the death of the freehold is in possession (p. 168, n.), their husbands, to whom they should in the wife is dowable, subject to the term time to come be married, in the same (1 Taunt., 410), and may have her third manner as English women.” Accord- of any rent reserved. ing to Lord Coke, an infidel, the wife But the legislature, having put the of a Christian, shall not be endowed; dower of a woman married since the 1st and the case which he mentions as au- of January, 1834. completely within the thority for this is of a Jew in England power of the husband, bas thought fit who married a Jewess, and was after- to enlarge the list of subjects to which ward converted to the Christian faith, such dower may attach, by abolishing and died; the wife brought a writ of the necessity of seizin in the husband, dower, but was held to be barred. (Co. and of any legal estate whatever, so that Litt., 31, b.)-[Chitty.]

his beneficial interest amount to a sole

equitable estate of inheritance in posses(40) See Co. Litt., 31, b; 2 Ves. Jun., sion. (Stat. 3 & 4 Will. IV., c. 105.) 652 ; 1 Taunt., 402.

(42) As to the question whether the (41) This should be solely seized;" wife's issue could possibly have inheritfor if the husband hold in joint-tenancy, ed, see 2 Atk., 47 ; 3 Bos. & P., 652; 2 and die before his co-tenant, the title of Sim., 249. the latter, in consequence of the seizin

In New York, the widow of an alien entitled by law to hold land may claim her dower if an inhabitant of the state, but the alien widow of a natural-born citizen was held not entitled to dower.—(10 Wendell, 379.) The disability, how. ever, was removed by statute in 1835.

131 son by his first wife, and after marries a second wife, she shall be endowed of his lands; for her issue might, by possibility, have been heir on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body begotten on Jane his wife, though Jane may be endowed of these lands, yet, if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed; for no issue that she could have could by any possibility inherit them. A seizin in law of the husband will be as effectual as a seizin in deed, in order to render the wife dowable ; for it is not in the wife's power to bring the husband's title to an actual seizin, as it is in the husband's power to do with regard to the wife's lands : which is one reason why he shall not be tenant by the courtesy, but of such lands whereof the wife, or he himself in her right, was actually seized in deed.w* The seizin of the husband for a transitory [132] instant only, when the same act which gives him the estate Momentary conveys it, also, out of him again (as where by a fine land is seizin of

. granted to a man, and he immediately renders it back by the same fine), such a seizin will not entitle the wife to dower ;* for the land was merely in transitu, and never rested in the husband, the grant and render being one continued act. But, if the land abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof.y** 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 the defense of the realm ;z nor of a common without stint ; for, as the heir would then have one porLitt., 0 53.

survived the father, by appearing to Co. Litt., 31.

struggle longest; whereby he became * Cro. Jac., 615. 2 Rep., 77. Co. seized of an estate in fee by survivorLitt., 31.

ship, in consequence of which seizin y This doctrine was extended very his widow had a verdict for her dower. far by a jury in Wales, where the fa- –(Cro. Eliz., 503.) ther and son were both hanged in one * Co. Litt., 31. 3 Lev., 401. cart, but the son was supposed to have

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(43) Where entry is requisite to per- band but for an instant, and that from fect a common law assurance, as in the the necessity of the case, and for the purcase of an exchange or a partition be- pose of conveyance only, the dower shall tween joint-tenants, the wife's title does not attach, seems to contain a sounder not attach before entry. (Perk., s. 368.) explanation; for, at common law, the

notions of property and of estate are (44) "The student may reasonably identical. Thus, if one joint-tenant be puzzled to distinguish between the make a feoffment in fee, his wife shall transitory instant of one example and not be endowed. (Co. Litt., 31, b.) the single moment of the other. In Yet here the husband has an interest in fact, the space of time is no essential in the momentary fee he passes; but, as gredient in the case; it is the interest of he acquires it only for the purpose of the husband.”—[COLERIDGE.] The dis- conveyance, it shall not be subject to tinction in the text, however, namely, dower. that where the estate vests in the hus

tion of this common, and the widow another, and both without stint, the common would be doubly stocked.a 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 free-bench.b45 But where dower is allowable, it matters not though the husband aliene the lands during the coverture; for he alienes them liable to

dower.co 3. Manner in

3. Next, as to the manner in which a woman is to be enwhich endowed. dowed, there are now subsisting four species of dower; the

fifth, mentioned by Littleton,d 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 have half the husband's lands, or, in some places, the whole, and in some only a quarter. 3. Dower ad ostium

ecclesie ;f which is where tenant in fee-simple of full age, open( 133 ] ly at the church door, where all marriages were formerly cel

ebrated, after affiance made and (Sir Edward Coke, in his
translation of Littleton, 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 as-
certaining the same; on which the wife, after her husband's
death, may enter without further ceremony. 4. Dower ex as-
sensu patris ;g which is only a species of dower ad ostium ec-
clesiæ, 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 madeh in facie ecclesiæ et ad ostium eccle-
siæ ; non enim valent facta in lecto mortali, nec in camera, aut
alibi ubi clandestina fuere conjugia.
a Co. Litt., 32. 1 Jon., 315.

e fitt., 0 37.
6 4 Rep., 22.

| Ibid., 39. c Co. Litt., 32.

& Ibid., Ø 40. * * 48, 49.

h Bracton, l. 2, c. 39, N 4.

(45) The nature and extent of the an estate. (3 P. Wms., 229; 2 Atk., dower varies in different manors, ac- 525.). The reason assigned why the cording to the custom. (See Watkins wife has not dower out of a trust estate on Copyholds, and Scriven, 86.) In is, that she was not endowed of a use at the absence of any special custom, the common law. And from analogy to widow is entitled to free-bench out of trusts, it has been determined that a wife those copyholds only of which the hus- shall not be endowed of an equity of reband died seized ; in other words, her demption, where the estate was morttitle is liable to be barred by her hus- gaged in fee by the husband previous to band's simple alienation of the lands. the marriage. '(1 Bro., 326.)--[Christ. (Wood v. English, 5 Jurist, 741; 2 Ves. In.] (4 Beav., 10.) And where the Sen., 633 ; 1 Gale & D., 180; ante, p. husband is seized of a legal estate in 129, n. 35.)

trust for others, equity will restrain the

wife from enforcing her legal title. (2 (46) It is now settled that, although Ves. Sen., 634.) But by a modern statthe husband may be tenant by the court- utè a widow may now be endowed of a esy of a trust-estate of inheritance, the trust estate. (Ante, p. 131, n. 41.) wife is not entitled to dower out of such

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