Sivut kuvina

It is curious to observe the several revolutions which the Revolutions

in doctrine 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 ;i and afterward we hear no more of it. Under Henry the Second, according to Glanvil,k the dower ad ostium ecclesiæ 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 ecclesiæ 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.m 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 en

dowed specalled 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.P In King John's Magna Charta, and the first charter of Henry III., 9 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

i Si mortuo viro uzor 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 re- wife was endowed generally (ubi quis manserit, dotem quidem habebit, dum uxorem suam dotaverit in generali, de corpus suum legitime servaverit.—(Cart. omnibus terris et tenementis, Bract., Hen. I., A.D. 1001. Introd. to Great ib.), the husband seems to have said, Charter, edit. Oxon., pag. iv.)

“With all my lands and tenements I Glanv., 1. 6, c. 1 and 2.

thee endow;" and then they all became 1 Gr. Coustum., c. 101.

liable to her dower. When he endow. m Bract., l. 2, c. 39, Ø 6.

ed her with personalty only, he used to 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.)

my worldly chattel) 1 thee endow ;'' ó Glanv., 1. 6, c. 2.

which entitled the wife to her thirds, p When special endowments were or pars rationabilis, of his personal esmade ad ostium ecclesiæ, 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 personaity. Sacerdos interroget dotem mulieris ; 9 A.D. 1216, c. 7, edit. Oxon.

[ocr errors]

Common law endowments.

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 Ed. ward I.s 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;u 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.w 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

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,2 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 assignedb by the heir of the husband, or his guardian; not

y Ubi supra.


? Assignetur autem ei pro dote suả Mirr., c. 1, $ 3. tertia pars totius terræ mariti sui que sua fuit in vita sud, nisi de minori do- Cap. 7. tata fuerit ad ostium ecclesia.-0.7.- a It signifies, in particular, the forty (Ibid.)

days which persons coming from me • Bract., ubi supr. Britton, c. 101, fected countries are obliged to wait be102. Flet., l. 5, c. 23, Ø 11, 12. fore they are permitted to land in En· P. 7 Hen. IV., 13, 14.

gland. u g 39. F. N. B., 150.

b Co. Litt., 34, 35.

W 41.

(47) And have since been abolished. contended that the word marita gium, (Stat. 3 & 4 Will. IV., c. 105, s. 13.) here translated marriage, was used in

the ordinary sense of that word for the (48) See a note on this passage, by portion or estate given to a husband with Mr. Justice Coleridge, in which it is a wife, i. e., in frank-marriage.

neg. lects, sheriff

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 thereof to the lord, and the widow is immediate tenant to the [136] 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 If heir within the term of quarantine, or do assign it unfairly, she has assigns her remedy at law, and the sheriff is appointed to assign it. Or dower. if the heir (being under age) or his guardian assign more than she ought to have, it may be afterward remedied by writ of admeasurement of dower.d 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 Upon preconcerted marriages, and in estates of considerable Jointure

generally consequence, tenancy in dower happens very seldom; for the

substituted claim of the wife to her dower at the common law diffusing it for dower. self so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alteration of the ancient law respecting dower ad ostium ecclesię, 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 Dower, how e Co. Litt., 34, 35.

d F. N. B., 148. Finch, L., 314. e Co. Litt., 32.

Stat. Westm., 2, 13 Edw. I., c. 7.

(48) See 1 Gale & D., 180.

of equity if she had attempted to enforce

her legal title; but this method was ob(49) As the widow was dowable of jectionable on account of the danger and every legal estate of inheritance of which inconvenience of leaving the legal estate the husband was solely seized in pos- in a third person. Another method was, session at any time during the coverture, to take the conveyance to the purchaser to which her issue might possibly in- and another person as joint-tenants, in herit, the title to dower formed a serious trust, as to the estate of the stranger, for impediment to the conveyance of the the purchaser; but this plan was open estates of married men; and hence it to nearly the same objections as the became usual, upon purchasing an estate former, and this further danger, that, by of inheritance, to take the couveyance the death of the third person in the purin such a form as would prevent the chaser's lifetime, the estate of the latter, right of dower from attaching. Various becoming a sole estate, would become modes were formerly in use for this pur- liable to dower. Another method was pose. Sometimes the estate was con- therefore contrived (by the celebrated veyed to a trustee for the purchaser, in Fearne), which was free from all obwhich case the purchaser's wife was not jections; the inheritance was limited to dowable, because her husband's estate the husband by way of remainder in the was not legal, and the trustee's wife following manner: It was limited to the would have been restrained by a court husband during his natural life, with re

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 Gloucester,s if a dowager alienes the land

assigned her for dower, she forfeits it ipso facto, and the heir [137] may 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.h* But the most usual method of

i Co. Litt., 39.

6 6 Edw. I., c. 7.

h Pig., of Recov., 66.

mainder to A. B., in trust for the hus- dower; that her dower may be barred
band (an estate which, as will be seen by a simple declaration in any deel ex-
when the subject of remainders comes ecuted by the husband or by his will;
to be considered, was a vested estate in that it may be subjected to any restric
remainder, capable of taking effect in tions by his will; and, finally, that, un-
case the husband's estate should by for- less a contrary intention is declared by
feiture or otherwise come to an end the will, a devise by the husband of any
during his life, and sufficient to separate estate or interest in land out of which
the husband's life estate from the re- she would be entitled to dower, to or
mainder in fee, and to keep them from for the benefit of his widow, shall bar
uniting (18 Viner, 413)), with remain- her dower. (Stat. 3 & 4 Will. IV., c.
der to the husband iu fee. Under these 105.)
limitations, as the husband could never
have an estate of inheritance in posses- (50) By the custom of Kent, the
sion during his life, the widow's title to wife's dower of the moiety of gavel-
dower was effectually prevented from kind lands was in no case forfeitable
arising (see 3 Lev., 437), while the small for the felony of the husband, but where
(and, in effect, fictitious) estate vested in the heir should lose his inheritance.
A. B. caused no inconvenience. The (Noy's Max., 28.) But this custom does
last improvement was given to this con- not extend to treason. Wright's Ten-
trivance by investing the purchaser with ures, 118; Rob., Gavelk., 292.)-[Chito
a power, under the statute of uses, of TY.]
appointing the fee-simple in any manner
he should please; the mode of effecting (51) “The mischief, before the mak-
which will be explained hereafter (vide ing of this statute (Gloucester, c. 7), was
p. 339), and under which power it was not where a gift or feoffment was made
held that the wife's dower might be ef- in fee or for term of life (of a stranger)
fectually defeated. (5 B. & Al., 561.) by tenant in dower; for, in that case, he

The form of limitations to prevent in the reversion might enter for the for:
dower thus brought to perfection is still feiture, and avoid the estate. But the
in common use, being necessary in all mischief was, that when the feoffee, or
cases where the purchaser was married any other, died seized, whereby the entry
to his present wife on or before the 1st of him in the reversion was taken away,
of January, 1834, and being useful even he in the reversion could have no writ
where such was not the case, for the of entry ad communem legem until after
purpose of satisfying future purchasers the decease of tenant in dower, and
without going into evidence of the fact, then the warranty contained in her deed
But the title to dower of a widow mar- barred him in the reversion if he were
ried subsequently to that day now forms her heir, as commonly he was; and for
no impediment to alienation, it having the remedy of this mischief this statute
been enacted that such a widow shall gave the writ of entry in casu proviso in
not be entitled to dower out of any land the lifetime of tenant in dower." (2
which shall have been absolutely dis- Inst., 309.) But the statute was not in-
posed of by her husband in his lifetime tended to restrain tenant in dower from
or by his will; that all partial disposi- aliening for her own life, for alienation
tions, debts, encumbrances, contracts, for such an estate wrought no wrong.
and engagements to which his land shall (ibid.)—[Chitty.]
be subject shall be good against her

* Fines are abolished in New York.—(2 R. S., 343, Ø 24.) A woman will, how

barring dowers is by jointures, as regulated by the statute 27 Hen. VIII., c. 10.

A jointure, which, strictly speaking, signifies a joint estate, Jointure. 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 :i “ 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, before mentioned, 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 seized 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 seized and possessed of the soil itself. In consequence of which legal seizin, 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, upon making such an estate in jointure to [138] the wife before marriage, she shall be forever precluded from her dower. But then these four requisites must be punctually Four requiobserved: 1. The jointure must take effect“ immediately on jointura. the death of the husband. 2. It must be for her own life au 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 par

[blocks in formation]

(52) It must not only take effect in by her own act. Thus, an estate durante fact, but it must be limited so to take viduitate is a good jointure, because, uneffect. (Co. Litt., 36.)

less sooner determined by herself, it

continues to her for life. (4 Rep., 3.)(53) Although the estate must be in [Chitty.] point of quantity for her life, yet it may be such as may be determined sooner (54) Any equitable estate may be a

ever, be barred of her dower by uniting with her husband in the conveyance of lands.-(1 R. S742, 16.)

« EdellinenJatka »