[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 coins), but not the widows of felons." An alien, also, can not be endowed,"* unless she be queen consort; for 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; though in Bracton's time the age was indefinite, and dower was then only due si uxor possit dotem promereri, et virum sustinere.t At what age. 2. Of what be endow ed. 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. Therefore, if a man, seized in fee-simple, hath a P 5 & 6 Edw. VI., c. 11. q Stat. Eliz., c. 11; 18 Eliz., c. 1; 8 & 9 W. III., c. 26; 15 & 16 Geo. II., c. 28. (38) Stat. 54 Geo. III., c. 145. (39) Lord Hale's MSS. contain the following note upon this subject: "Nota. Anciently, a woman alien was not dowable; but by special act of Parliament not printed (Rot. Parl., 8 Hen. V., n. 15), all women aliens, who from thenceforth should be married to Englishmen by license of the king, are enabled to demand their dower after the death of their husbands, to whom they should in time to come be married, in the same manner as English women." According to Lord Coke, an infidel, the wife of a Christian, shall not be endowed; and the case which he mentions as authority for this is of a Jew in England who married a Jewess, and was afterward converted to the Christian faith, and died; the wife brought a writ of dower, but was held to be barred. (Co. Litt., 31, b.)-[CHITTY.] Co. Litt., 31. which he had of the whole of the estate during the husband's lifetime, is better than that of the wife. (Co. Litt., 37.) Another requisite omitted in the text is, that the estate of inheritance should be in possession, and not in remainder or reversion expectant on a particular estate of freehold. If the inheritance of the husband is expectant upon a term of years, then, as the freehold is in possession (p. 168, n.), the wife is dowable, subject to the term (1 Taunt., 410), and may have her third of any rent reserved. But the legislature, having put the dower of a woman married since the 1st of January, 1834. completely within the power of the husband, has thought fit to enlarge the list of subjects to which such dower may attach, by abolishing the necessity of seizin in the husband, and of any legal estate whatever, so that 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. (41) This should be “solely seized;" for if the husband hold in joint-tenancy, and die before his co-tenant, the title of the latter, in consequence of the seizin (42) As to the question whether the wife's issue could possibly have inherited, see 2 Atk., 47; 3 Bos. & P., 652; 2 Sim., 249. * 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 cit izen was held not entitled to dower.-(10 Wendell, 379.) The disability, however, was removed by statute in 1835. 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.w3 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 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 ; nor of a common without stint; for, as the heir would then have one por ▾ Litt., § 53. Co. Litt., 31. * Cro. Jac., 615. 2 Rep., 77. Co. Litt., 31. 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 (43) Where entry is requisite to perfect a common law assurance, as in the case of an exchange or a partition between joint-tenants, the wife's title does not attach before entry. (Perk., s. 368.) survived the father, by appearing to Co. Litt., 31. 3 Lev., 401. band but for an instant, and that from the necessity of the case, and for the purpose of conveyance only, the dower shall not attach, seems to contain a sounder 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 seizin of husband. 3. Manner in which en dowed. tion 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 free-bench.b But where dower is allowable, it matters not though the husband aliene. the lands during the coverture; for he alienes them liable to dower.c1 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,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; 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 ecclesiæ;f which is where tenant in fee-simple of full age, open[133] ly at the church door, where all marriages were formerly celebrated, 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 ascertaining the same; on which the wife, after her husband's death, may enter without further 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 madeh in facie ecclesiæ et ad ostium ecclesiæ; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuere conjugia. a Co. Litt., 32. 1 Jon., 315. c Co. Litt., 32. (45) The nature and extent of the dower varies in different manors, according to the custom. (See Watkins on Copyholds, and Scriven, 86.) In the absence of any special custom, the widow is entitled to free-bench out of those copyholds only of which the husband died seized; in other words, her title is liable to be barred by her husband's simple alienation of the lands. (Wood v. English, 5 Jurist, 741; 2 Ves. Sen., 633; 1 Gale & D., 180; ante, p. 129, n. 35.) (46) It is now settled that, although the husband may be tenant by the courtesy of a trust-estate of inheritance, the wife is not entitled to dower out of such ⚫ itt., § 37. f Ibid., § 39. h Bracton, 1. 2, c. 39, § 4. an estate. (3 P. Wms., 229; 2 Atk., 525.) The reason assigned why the wife has not dower out of a trust estate is, that she was not endowed of a use at common law. And from analogy to trusts, it has been determined that a wife shall not be endowed of an equity of redemption, where the estate was mortgaged in fee by the husband previous to the marriage. (1 Bro., 326.)[CHRIST IAN.] (4 Beav., 10.) And where the husband is seized of a legal estate in trust for others, equity will restrain the wife from enforcing her legal title. (2 Ves. Sen., 634.) But by a modern statute a widow may now be endowed of a trust estate. (Ante, p. 131, n. 41.) in doctrine It is curious to observe the several revolutions which the Revolutions doctrine of dower has undergone since its introduction into of dower. 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 afterward we hear no more of it. Under Henry the Second, according to Glanvil,k the dower ad ostium ecclesiae was the most usual species of dower; and here, as well as in Normandy, 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 ecclesia with more than the third part of the lands whereof he then was seized, though he might endow her with less; lest by such liberal endowments the lord should be defrauded of his wardships and other feodal profits. But if no specific dotation was made at the church porch, then she [134] was endowed by the common law of the third part (which was If not encalled her dos rationabilis) of such lands and tenements as cifically, the husband was seized of at the time of the espousals, and no then by com other; unless he specially engaged before the priest to endow mon law. 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 dowero in lands which he afterward acquired. In King John's Magna Charta, and the first charter of Henry III., no 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 iSi mortuo viro uxor ejus remanse- et, si terra ei in dotem detur, tunc dirit, et sine liberis fuerit, dotem suam catur Psalmus iste," &c. When the habebit; si vero uxor cum liberis remanserit, dotem quidem habebit, dum corpus suum legitime servaverit.-(Cart. Hen. I., A.D. 1001. Introd. to Great Charter, edit. Oxon., pag. iv.) Glanv., 1. 6, c. 1 and 2. 1 Gr. Coustum., c. 101. m Bract., 1. 2, c. 39, § 6. wife was endowed generally (ubi quis De questu suo.-(Glan., ib.) De say, "With all my worldly goods (or, terris acquisitis et acquirendis.—(Bract., as the Salisbury Ritual has it, with all ib.) • Glanv., 1. 6, c. 2. my worldly chattel) I thee endow;" which entitled the wife to her thirds, P When special endowments were or pars rationabilis, of his personal esmade ad ostium ecclesia, the husband, tate, which is provided for by Magna after affiance made and troth plighted, Charta, cap. 26, and will be further used to declare with what specific lands treated of in the concluding chapter of he meant to endow his wife (quod dotat this book; though the retaining this eam de tali manerio cum pertinentiis, last expression in our modern Liturgy, &c., Bract., ibid,); and therefore, in the if of any meaning at all, can now refer old York ritual (Seld., Ux. Hebr., 1. 2, only to the right of maintenance, which c. 27), there is, at this part of the mat- she acquires during coverture, out of rimonial service, the following rubric: her husband's personalty. “Sacerdos interroget dotem mulieris; a A.D. 1216, c. 7, edit. Oxon. dowed spe. 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 ;t [135] and, under Edward IV., Littleton lays it down 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 dis Common law endowments. use." W 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 license, lest she should contract herself, and so convey part of the feud to the lord's enemy. This license 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 remedy these oppressions, it was provided, first by the charter of Henry I.,y and afterward by Magna Charta," that the widow shall pay nothing for her marriage," nor shall be distrained to marry afresh if she chooses to live without a husband, but shall not, however, marry against the consent of the lord; and further, 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 |
