Burdon v. 1 Salk. 252. Fine or charters. 1. If the heir has the land by purchase. 2. If he has delivered the charters to the widow ; for then she has them by his own act. 3. If the heir be not immediately vouched. 4. If he comes in as vouchee. 5. If he comes in as tenant by receipt. The reason is manifest, if the true form of pleading in that case be observed: for he who pleads detinue of charters, in bar of dower, ought to plead that he has been always ready, and yet is, to render dower, if the demandant would deliver to him his charters. 18. If a woman joins with her husband in levying a fine, or suffering a common recovery, of lands whereof she is dowable, she will thereby effectually bar herself from claiming dower out of those lands. Tit. 35, 36. The principles upon which this doctrine is founded, will be explained hereafter. Bargain and London. Bohun 19. By the custom of London, a married woman may bar herself of dower, by a deed of bargain and sale, acknowledged before the lord mayor, or the Priv. Lond. recorder, and one alderman; and enrolled in the court of hustings. The wife being examined separately from her husband, as to her consent. Jointure. A Devise is no Bar of Dower. 1 Inst. 36 b. 4 Rep. 4 a. 20. The most usual mode of barring dower, in modern times, is by means of a jointure settled on the wife before marriage of which an account will be given in the next title. 21. Every devise or bequest in a will imports a bounty, therefore cannot in general be averred to be given as a satisfaction for that to which the devisee is by law entitled. In consequence of this principle a devise cannot be averred, even in equity, to be in satisfaction of dower; unless it be so expressed in Tit. 38. c. 1. the will. 1. Because a devise implies a consideration in itself; and cannot be averred to be for the use of any other person than the devisee, unless it is so expressed in the will: no more can a devise be averred to be for satisfaction of dower; unless it is so expressed. 2. As all wills of land must be in Idem, c. 9. writing, no averment respecting the intention of the testator is admissible, which cannot be collected from the words of the will itself. Hitchin v. 22. A person being indebted, devised part of his lands to his wife, but did not mention it to be in bar of dower; and devised the residue to his executors, 133. till his debts were paid. The wife brought a writ of dower, and recovered her dower. The heir filed a bill in Chancery against her, to be relieved; the court said the devise was not to be looked upon as a recompence or bar of dower; but as a voluntary gift. 23. If a husband devises lands to his wife during her widowhood only; or restrains the devise in any other manner, so as to render it less beneficial than dower, a court of equity will not interfere; but the wife will be allowed to take both the thing devised, and also her dower. 1 Ld. Raym. 438. 2 Freem. 234. 24. W. Lawrence devised lands of the annual value Lawrence v. of 1301. to his wife during her widowhood; after the Lawrence, determination of that estate he devised the same premises, together with all his other lands, to trustees for a term of 24 years, in trust for the payment of his debts and legacies; as a farther provision for his wife, he directed that after two years of the term were expired, his trustees should permit her to receive the rents and profits of another farm of 90 l. per annum, for the remainder of the said term of 24 years, so long as she should continue a widow. The widow entered upon the lands devised to her, and afterwards brought a writ of dower, to which was pleaded the devise, with an averment that the same was in satisfaction of 2 Vern. 365. 1 Ab. Eq. 218. 3 Bro. Parl. Ca. 483. her dower. Upon demurrer to this plea, judgment. was given for the demandant. A bill was then exibited in Chancery, to be relieved from this judgment: Lord Somers decreed a perpetual injunction against the widow, to stay her further proceeding upon the judgment in dower. The cause was reheard by Lord Keeper Wright, who ordered a case to be stated. 1. Whether the defendant was barred of her dower by the devise in the will, or not. 2. If she was not barred of her dower, by such devise, whether the plaintiff ought to be relieved in that court. A case was accordingly stated, and in 1702 the cause came on, upon the case so stated; when his lordship declared that he had fully considered of the matter, but conceived there was nothing in the testator's will that did intend that the defendant should be barred of her dower: in case any such thing did appear by the will, the same would only be a bar at law, not in that court, and as the matter had been already determined at law, he reversed so much of the former decree as awarded a perpetual injunction against the defendant's proceeding at law upon her judgment in dower. The cause was brought on again by a remainderman before Lord Cowper in 1715, who declared, as to the question of dower, that it being a point of right, and so doubtful in its nature, that the court had been of different opinions about it; and the determination in 1702 having remained so long unquestioned; he did not think fit to make any variation from what was then determined. On an appeal from this decree to the House of Lords, it was contended for the appellant, that it would be against the rules of natural equity and justice, if the respondent should be permitted to enjoy the estates devised to her by her husband's will, and at the same time disappoint his intention, by insisting on her dower; for which the lands devised were far more than an equivalent. On the other side it was said to be no where expressed, nor to be collected from the words of the will, that the lands devised to the respondent, were for her jointure, or in bar of her dower; neither could it be so averred at law, or in a court of equity; she having no estate for life, but for her widowhood only. The decree was affirmed. Lemon, 25. A person devised lands to his wife for life, and Lemon v. devised other lands to his brother and his heirs. The 8 Vin. Ab. wife entered into the lands devised to her, which 366. were of more value than her dower; she afterwards claimed dower of the rest, and had judgement. The brother brought his bill in Chancery to be relieved. The case of Lawrence and Lawrence was cited for the defendant, to prove that the wife should have dower, notwithstanding a devise to her for life of lands by her husband; unless declared to be in lieu and satisfaction of dower. Lord Parker said that this Incledon v. point had been determined in the House of Lords; 3 Atk. 430. Northcote, and dismissed the bill.. then the 26. If it be expressed in a will that the devise is Unless so exmade in lieu and satisfaction of dower; or on condi- pressed, and tion that the wife shall not claim dower; then the Widow has wife cannot have both; for that would be repugnant Leake v. an Election. to the intention of the testator. The wife must there- Randall, 4 Rep. 4 a. fore in such a case make her election. 27. A man devised a third part of his lands to his Bush's Case, wife, in recompence of her dower. The wife entered Dyer 220. on the lands devised to her; it was resolved that she Gosling v. Lesquire v. 28. A person devised his lands to his wife till P. his daughter attained the age of nineteen, afterwards to P. in tail, remainder over in fee. He devised further, that P. should pay, after her age of nineteen, 12. per annum to his wife in recompence of her dower; if she failed of payment, that his wife should have the land for her life. The wife, before P. attained nineteen, brought a writ of dower, and recovered a third part; after P. attained nineteen, the wife entered for non-payment of the 127. The question was, whether her entry was lawful. It was adjudged, that the wife having recovered a third part in dower, she should not have the rent; as it was against the intention of the testator that she should have both; that the acceptance of one, was a waiver of the other. Upon a writ of error this judgement was affirmed. 29. A man devised his personal estate to trustees, in trust that his widow should receive thereout 1007. a year during her life, in lieu and discharge of her dower. The wife received this annuity for many years, then brought a writ of dower. Decreed, that the wife was barred of dower, as long as the personal estate was sufficient. 30. With respect to the acts which will amount to an election, and the time within which they must take Tit. 38. c. 2. place, they will be stated hereafter. Sometimes held a Satisfaction. 31. Notwithstanding the doctrine established in the case of Lawrence v. Lawrence, and the frequent recognition of it, devises have been sometimes deemed a satisfaction, in equity, for dower, on account of strong and special circumstances; as where allowing the widow to take a double provision would have been quite inconsistent with the dispositions of the will. |