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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;f 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 Edw. I., c. 7. b Pig., of Recov., 66.

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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
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 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. & A1., 561.) by tenant in dower; for, in that case, hé

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 Ř. 8., 343, $ 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 estatė, Joiature. 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.k But then these four requisites must be punctually

Four requi observed: 1. The jointure must take effect“ immediately on jointuro. 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.54 4. It must be made, and so in the deed pari 1 Inst., 36.

* 4 Rep., 1, 2.

sites to

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(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, un. effect. (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

over, be barred of her dower by uniting with her husband in the conveyance of lands.-(1 R. S. 42, 8 16.)

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 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. 167*

These settlements, previous to mar- bonis, æstimatione factâ, cum dotibus riage, seem to have been in use among communicant. Hujus omnis pecunia 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.

age

good jointure in equity. (4 Ves., 395; Lord Eldon has declared, that “the Ibid., 4; 1 Swanst., 446; 5 Russ., 255.) question in all these cases is, whether

the testator meant to give away his wife's (55) Or it may be averred to be. (4 dower, which he could not do directly; Rep., 3.) An assurance was made to a for that it must be seen clearly that he woman, to the intent it should be for her meant to dispose so that, if she should jointure, but it was not so expressed in claim dower, it would disappoint the the deed. And the opinion of the court will. It must appear there is a repug. was, that it might be averred that it nancy." (6 Ves., 616.)-[CHRISTIAN.] was for a jointure, and that such averment was traversable. (Owen, 33.)- (57) But if the wife was of when [CHRISTIAN.] Since the Statute of she married, it seems that she will be Frauds, however, which requires the restrained by a court of equity from ensurrender of any estate in land, and any forcing her

legal claim to dower, in case agreement concerning land, to be in of eviction from her jointure. (1 Madd.. writing, such averment would not be 609.) It has been determined, that if a admissible, even in equity. (3 Atk., 8.) woman who is under age at the time of

marriage agrees to a jointure and settle(56) See 3 Myl. & Cr., 171; 1 Scott, ment in bar of her dower, and her dis82. And where a devise is expressed tributive share of her husband's personto be given in lieu and satisfaction of al property, in case he dies intestate, dower, or where that is the clear and she can not afterward waive it, but is manifest intention of the testator, the as much bound as if she were of

age wife shall not have both, but shall have the time of marriage. Lord Northingher choice. (Harg., Co. Litt., 36, b.) ton had decreed the contrary; but his

But where the lands are devised out decree was upon both points reversed. of which the widow is entitled to dower, (4 Br., P. C., 570; 2 Eden, 73.)and the testator leaves her an annuity, [Christian.) And in 3 Ves. Jun., 545, she shall not be put to her election, un- it was held that dower was barred by a less it appears to have been the inten- settlement, previous to marriage, but tion of the testator that she should not during the infancy of the wife, of stock retain both.

and leasehold property, partly the hus

at

* 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

tive advant

ure,

There are some advantages attending tenants in dower that comparado not extend to jointresses; and so, vice versa, jointresses are ages of dowin some respects more privileged than tenants in dower. Ten- er and jointant in dower, by the old 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 can not distrain for his debt, if contracted during the coverture.m 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 ostium ecclesiæ, which a jointure in many points resembles; and the resemblance was still greater while that species of dower continued in its 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."

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band's and partly the wife's, though no the Court of Chancery will decree against guardian consented. A jointure, to be the husband a performance of marriage binding in equity upon an infant, must articles, though he alleges and proves be limited to take effect with certainty that his wife lives separate from him immediately upon the husband's death. in adultery. (3 Cox's P. Wms., 277.) (4 Br., C. C., 500; 5 Ves., 189. See 5 -[CHRISTIAN.). (2 B. & C., 547.) Russ., 255.)

But by express stipulation, jointure and

separate maintenance may be forfeited (58) A jointure is not forfeited by the by any prohibited intercourse with a adultery of the wife, as dower is; and third person. (1 Taunt., 417.)

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the act by becoming a party to the conveyance; and if an infant, by joining with her guardian in the conveyance. So any pecuniary provision made for the benefit of an intended wife, and in lieu of dower, if assented to as above, is a bar to dower. If before coverture, but without the assent of the intended wife, or if after coverture, lands are given for the jointure of the wife, or a pecuniary pro vision be made for her in lieu of dower, she must make her election whether she will take such jointure or provision, or be endowed of the lands of her husband So, also, she must make her election when lands are devised to her, or other provision made for her by will, in lieu of dower; and she will be deemed to have elected to take such jointure, devise, or pecuniary provision, unless, within one year after the death of her husband, she commence proceedings for the recovery of her dower. Such jointure, devise, or provision is forfeited in the same case? in which the wife forfeits her dower.-(1°R. S., 741, 0 9-15.)

157

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CHAPTER IX.

OF ESTATES LESS THAN FREEHOLD.

Three sorts.

Of estates that are less than freehold, there are three sorts : 1. Estates for years ; 2. Estates at will; 3. Estates by suffer

ance.

1. For years.

I. An estate for years' is a contract for the possession of lands or tenements, for some determinate period; and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee,a and the lessee enters thereon.b. If the lease be put for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of. And this may, not improperly, lead us into a short digression concerning the division and calculation of time by the English law.'

a We may here remark, once for all, is made: the donor is one that givetla that the terminations of "-or" and lands in tail; the donee is he who re"-ee" obtain, in law, the one an act- ceiveth it: he that granteth a lease is ive, the other a passive signification; denominated the lessor; and he to the former usually denoting the doer of whom it is granted, the lessee.-(Litt., any act, the latter him to whom it is $ 57.) done. The feoffor is he that maketh a b Ibid., 58. feoffment; the feoffee is he to whom it c Ibid., 67.

(1) On this subject the student is rec- toms, &c. See the statute set forth in ommended to study the admirable ar. Burn, Ecc. L., tit. Calendar. ticle on “ Leases and Terms for Years," The year consists of three hundred printed in Bacon's Abridgment, and at- and sixty-five days; there are six hours, tributed to the pen of Chief-baron Gil- within a few minutes, over in each year, bert.

which every fourth year make another

day, being the 29th of February, and (2) The new or Roman style was in these three hundred and sixty-six days general use in every part of the Conti- constitute the bissextile or leap-year. nent (except Russia and Greece) long (Co. Lit., 135; 2 Roll., 521, 1. 35; Com. before its adoption in England, where, Dig., Ann. (A.); 24 Geo. II., c. 23, s. 2.) previously to the year 1752, the year Half a year consists of one hundred commenced on the 25th of March, and and eighty-two days, for there shall be the Julian calendar was used. The new no regard to a part or a fraction of a day. style was introduced here by the statute (Co. Litt., 135, b; Cro. Jac., 166.) The 24 Geo. II., c. 23, which enacts that the time to collate within six months shall 1st of January shall be reckoned to be be reckoned half a year, or one hundred the first day of the year, and throws out and eighty-two days, and not lunar eleven days in that year, from the 2d of months. (Cro. Jac., 166 ; 6 Co., 61.) September to the 14th, and in other re- So a quarter of a year consists but of spects regulates the future computation ninety-one days, for the law does not of time, with a saving of ancient cus. regard the six hours afterward. (Co.

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