may at the age of consent, disagree, shall entitle the wife to dower: therefore it is accounted in law, after the death of the husband, legitimum matrimonium quoad dotem.

4. It has been stated, that although a marriage be Tit. 5. c. I.. § 6. voidable, yet if it be not avoided in the life-time of the parties, it cannot be annulled after. And if a 1 Inst. 33 b.. marriage de facto be voidable by divorce, whereby the marriage might have been dissolved, and the parties freed a vinculo matrimonii, yet if the husband die before any divorce; then, for that it cannot after be annulled, his wife de facto will be endowed.

Robins v.

5. In actions for curtesy or dower, the fact of mar- How it must! riage cannot be tried by a jury, but only by the bishop's be proved. certificate, upon the plea of ne unques accouplé in loyal matrimony. Because the direct jurisdiction, in ques- Crutchley, tions concerning the legality of marriage, belongs to 2 Wils. R. the ecclesiastical courts, and the sentences of those 122. courts on this head are in general conclusive to the Ilderton, temporal courts.

Ilderton v.

2 H. Black.

145.

1 Inst. 32 a.

6. A divorce propter sevitiam et metum is no bar of Effect of dower; because it does not dissolve the bond of Divorces. matrimony; but it is only a permission to the parties to live separate, in order that the wife may be secure from the husband's cruelty.

7. Lord Coke says a divorce, on account of adul- Idem. tery, is no bar of dower, because it does not dissolve the marriage, but only separates the parties a mensa et thoro; and the marriage stills remains in force. In Rolls Abridgment is the following passage-" If the Tit. Dower, wife be divorced for adultery, which does not dissolve the bond of marriage, by the canon law, nor of our church in this realm, but is only a mensa et thoro; yet this shall bar her of her dower.”

P. 13.

Lady
Stowell's
Case,

God. 145.

Noy 108.

Shute v.

Shute, Prec. in Cha. 111.

infra, c. 5.

1 Inst. 33 a.

ante, § 4.

2° Seisin of the Husband. 1 Inst. 31 a.

8. Lord Coke's doctrine is however supported by a determination of the Court of Common Pleas in 2 James. And by a case in 1700, where a woman, who had been divorced a mensa et thoro, claimed her dower in Chancery, and Sir Thomas Trevor, M. R. said " as to the dower, whether you are entitled to it, go to law, there being no impediment, and therefore as to that, the bill must be dismissed." In this case the divorce was probably obtained on account of adultery.

9. If a woman elopes from her husband, and lives in adultery, she will thereby lose her dower.

10. A divorce causa præcontractus, consanguinitatis, affinitatis, or frigiditatis, bars the wife of dower; for these dissolve the vinculum matrimonii, and leave the parties at liberty to marry again. But the marriage must be dissolved in the life-time of the husband.

11. The second circumstance required to the existence of dower is, that the husband should be seised, sometime during the coverture, of the estate whereTit. 1. § 24. of the wife is dowable. There is however no neces-> sity for a seisin in deed, as in the case of curtesy, a seisin in law will be sufficient; otherwise it would be in the husband's power, either by his negligence or his malice, to defeat his wife of that subsistence, after his death, which the law has provided for her. And she cannot enter to gain a seisin in her own right, as her husband may do in lands descended to her; in order to entitle himself to curtesy.

Perk. 366.

12. Where the ancestor dies seised, and the heir, being married, dies without making an actual entry on the lands, his widow shall notwithstanding be endowed; for by the descent of the land upon the

heir, he acquired a seisin and freehold in law, though not in deed. It would be the same if soon after the death of the ancestor a stranger had entered on the land and abated: for between the death of the ancestor, and the entry of the abator, there was a space of time during which the heir had a seisin in law.

13. If however the heir had married, after the Perk.367. entry of the abator, and had died without making an entry, his widow would not be entitled to dower: because the seisin in law which the heir had acquired, upon the death of his ancestor, was divested by the abatement, before the marriage: so that the heir had neither a seisin in law, nor in deed, during the

coverture.

14. Where lands are conveyed to a married man, by a deed deriving its effect from the statute of uses, his wife will be entitled to dower, though the husband

does not enter; because by the operation of that Tit. 11. c. 3. statute a seisin in deed is transferred.

15. Lord Coke says, if a man makes a lease for 1 Inst. 32 a. life, reserving rent to him and his heirs, then marries

and dies; his wife shall not be endowed of the reversion, because there was no seisin in deed or in law of the freehold; nor of the rent, because the husband had but a particular estate therein, and no fee simple But if a man makes a lease for years, reserving rent, then marries, and dies, his wife shall be endowed; because he continues to be seised of the freehold and inheritance.

16. If a person devises lands to his executors for payment of his debts, and after his debts paid, to his son in tail; and the son marries, and dies before the debts are paid his wife shall have dower; because the estate of the executors is only a chattel interest,

8

1 Inst. 41 a. Rep. 96 a.

2 Vern. 404.

2 Comm.

132.

Broughton v. Randall, Cro. Eliz.

1 Inst. 31 b.

and the freehold vested in the son, on the death of his father. But the wife's dower will not commence till the debts are paid.

17. Sir W. Blackstone says, if the land abides in the husband for the interval of but a single moment, it seems that the wife shall be endowed thereof; and mentions a very extraordinary case, where the father and son where both hanged in one cart, but the son 502. Noy 64. was supposed to have survived the father, by appearing to struggle longest, whereby he became seised of an estate in fee by survivorship; in consequence of which seisin his widow had a verdict for her dower. 18. It is however laid down by Lord Coke, that, of a seisin for an instant, a woman shall not be endowed. This position is thus explained by Black"The seisin of the husband for a transitory stone:"The instant only, when the same act which gives him the estate, 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 seisin will not entitle the wife to dower, for the land was merely Amcotts v. in transitu, and never rested in the husband; the Catherick, grant and render being one continued act."

2 Comm. 131, 2.

1 Inst. 31 b.

Cro. Ja. 615.

1 Atk. 442.

Seisin of
Gavelkind
Lands.

19. Sir Joseph Jekyll has also said that a woman is not entitled to dower out of an instantaneous seisin. The cognizee of a fine is not so seised as to give his wife a title to dower; nor in the case of a use, has the widow of a trustee any claim to dower, from such a momentary seisin in her husband.

20. Lambard, in his perambulation of Kent, has advanced an opinion that a seisin in law is not sufficient, to entitle a woman to dower of gavelkind lands; because the words of the custom are "De, tenements dont son baron mourust vestu et seisi ;" which only extends to lands whereof the husband was

actually seised and customs derogatory to the common law ought to receive a strict construction.

117.

21. Mr. Robinson has controverted this opinion, and Gavélkind. observed, that whatever may be the strict literal sense of the word vestu, it can scarce be sufficient to add so unreasonable a qualification to the custom, as that the neglect of the husband in gaining an actual seisin, by entry, shall prejudice his wife; without a strong usage accordingly.

the Husband.

22. The last circumstance required to the exist- 3° Death of ence of an estate in dower, is the death of the husband; by which the wife's estate is consummate. But it is said that nothing but the natural death of 1 Inst. 33 b. the husband will give a title to dower. Though Id. 132 6. there are some authorities to prove that banishment Jenk. Cent.1. by abjuration, or by parliament, which is a civil death, will have the same effect.

Ca. 4.

23. With respect to the persons capable of being Who may be endowed, all women who are natural-born subjects, endowed. and have attained the age of nine years, are, by the common law, entitled to dower; although their hus

bands should be but four years old. Lord Coke 1 Inst. 33 a. says, if a man marries a woman who is only seven years old, and afterwards aliens his land, and the wife attains the age of nine years, and then the husband dies; she shall be endowed. For though she was not absolutely dowable at the time of her marriage, yet she was conditionally dowable, if she attained the age of nine years, before the death of her husband.

24. Notwithstanding the favour which the common law shews in general to widows, yet there are some cases in which women are disabled from having dower.

Who are incapable of

Dower.