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 ecclesia 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. 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

Common law endow meats.

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

a

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 neg lects, sheriff 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 like.e18

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 ecclesia, 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

c Co. Litt., 34, 35. e Co. Litt., 32.

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

(49) As the widow was dowable of every legal estate of inheritance of which the husband was solely seized in possession at any time during the coverture, to which her issue might possibly inherit, the title to dower formed a serious impediment to the conveyance of the estates of married men; and hence it became usual, upon purchasing an estate of inheritance, to take the conveyance in such a form as would prevent the right of dower from attaching. Various modes were formerly in use for this purpose. Sometimes the estate was conveyed to a trustee for the purchaser, in which case the purchaser's wife was not dowable, because her husband's estate was not legal, and the trustee's wife would have been restramed hv a court

d F. N. B., 148. Finch, L., 314. Stat. Westm., 2, 13 Edw. I., c. 7.

of equity if she had attempted to enforce
her legal title; but this method was ob-
jectionable on account of the danger and
inconvenience of leaving the legal estate
in a third person. Another method was,
to take the conveyance to the purchaser
and another person as joint-tenants, in
trust, as to the estate of the stranger, for
the purchaser; but this plan was open
to nearly the same objections as the
former, and this further danger, that, by
the death of the third person in the pur-
chaser's lifetime, the estate of the latter,
becoming a sole estate, would become
liable to dower. Another method was
therefore contrived (by the celebrated
Fearne), which was free from all ob-
jections; the inheritance was limited to
the husband by way of remainder in the
following manner: It was limited to the
husband during his natural life, with re-

barred

may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband, and other disabili ties before mentioned," but also by detaining the title deeds, or evidences of the estate, from the heir, until she restores them ;f and, by the statute of Gloucester,g 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

f Co. Litt., 39.

51

6 Edw. I., c. 7.

TỶ.]

b 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 deed 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 in 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.)—[CHIT-
a power, under the statute of uses, of
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
I 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, § 24.) A woman will, how

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

66

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: "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 requi observed: 1. The jointure .must take effect immediately on jointure the death of the husband. 2. It must be for her own life a least, and not pur auter vie, or for any term of years, or other smaller estate.53 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

i.1 Inst., 36.

(52) It must not only take effect in fact, but it must be limited so to take effect. (Co. Litt., 36.)

(53) Although the estate must be in point of quantity for her life, yet it may be such as may be determined sooner

* 4 Rep., 1, 2.

by her own act. Thus, an estate durante
viduitate is a good jointure, because, un-
less sooner determined by herself, it
continues to her for life. (4 Rep., 3.)—
[CHITTY.]

(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. S. "42, § 16.)

sites to

ticularly 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 ecclesia, and may either accept it or refuse it, and betake herself to her dower at common law v; 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.15* These settlements, previous to mar- bonis, æstimatione factâ, cum dotibus riage, seem to have been in use among communicant. Hujus omnis pecuniæ the ancient Germans, and their kindred conjunctim ratio habetur, fructusque sernation, the Gauls. Of the former Taci- vantur. Uter eorum vita superavit, ad tus gives us this account: "Dotem non eum pars utriusque cum fructibus superiuxor marito, sed uxori maritus affert; orum temporum pervenit." The dauintersunt parentes et propinqui, et mu- phin's commentator on Cæsar supposes nera probant."-(De Mor. Germ., c. 18.) that this Gaulish custom was the ground And Cæsar (De Bello Gallico, 1. 6, c. of the new regulations made by Justin18) has given us the terms of a marriage ian (Nov., 97) with regard to the prosettlement among the Gauls, as nicely vision for widows among the Romans; calculated as any modern jointure: but surely there is as much reason to "Viri, quantas pecunias ab uxoribus do- suppose that it gave the hint for our tis nomine acceperunt, tantas ex suis statutable jointures.

good jointure in equity. (4 Ves., 395; Ibid., 4; 1 Swanst., 446; 5 Russ., 255.)

(55) Or it may be averred to be. (4 Rep., 3.) An assurance was made to a woman, to the intent it should be for her jointure, but it was not so expressed in the deed. And the opinion of the court was, that it might be averred that it was for a jointure, and that such averment was traversable. (Owen, 33.)[CHRISTIAN.] Since the Statute of Frauds, however, which requires the surrender of any estate in land, and any agreement concerning land, to be in writing, such averment would not be admissible, even in equity. (3 Atk., 8.)

(56) See 3 Myl. & Cr., 171; 1 Scott, 82. And where a devise is expressed to be given in lieu and satisfaction of dower, or where that is the clear and manifest intention of the testator, the wife shall not have both, but shall have her choice. (Harg., Co. Litt., 36, b.)

But where the lands are devised out of which the widow is entitled to dower, and the testator leaves her an annuity, she shall not be put to her election, unless it appears to have been the intention of the testator that she should not retain both.

Lord Eldon has declared, that "the question in all these cases is, whether the testator meant to give away his wife's dower, which he could not do directly; for that it must be seen clearly that he meant to dispose so that, if she should claim dower, it would disappoint the will. It must appear there is a repug nancy." (6 Ves., 616.)-[CHRISTIAN.]

(57) But if the wife was of age when she married, it seems that she will be restrained by a court of equity from enforcing her legal claim to dower, in case of eviction from her jointure. (1 Madd., 609.) It has been determined, that if a woman who is under age at the time of marriage agrees to a jointure and settlement in bar of her dower, and her distributive share of her husband's personal property, in case he dies intestate, she can not afterward waive it, but is as much bound as if she were of age at the time of marriage. Lord Northington had decreed the contrary; but his decree was upon both points reversed. (4 Br., P. C., 570; 2 Eden, 73.)[CHRISTIAN.] And in 3 Ves. Jun., 545, it was held that dower was barred by a settlement, previous to marriage, but during the infancy of the wife, of stock and leasehold property, partly the hus

* Whenever an estate is conveyed for the purpose of creating a jointure for the intended wife, such jointure is a bar to dower, if, being of full age, she assent to