proof from the sentence of a court; so that there can be no courtesy in case of such marriage. This must be the case in every State in the Union, where such marriages are made void by law, and a sentence of some court is not necessary to furnish evidence of their being void. Where the law forbids such marriages, and inflicts a penalty upon the persons sɔ marrying, but does not declare them void, I should suppose that the issue of such marriages were legitimate, and that the husband would be entitled to his courtesy."

The Wife's Portion of her Husband's Estate on his Death, under the Statute of Distributions: Her Paraphernalia: Her Right of Dower in his Real Estate: And of Jointure.

We will now inquire what advantages the wife may gain, eventually by marriage, in point of property, during the coverture. She gains nothing during his life; but upon the death of her husband intestate, she is entiled to one third part of his personal property, which remains after paying the debts due from the estate of the husband, if he left any issue; but if he left no issue, she is entitled to one half of the residuum of the personal estate, after the debts are paid; but the husband, if he had chosen so to do, might have devised such estate from her. This right of the wife is founded upon the statute of distributions, in the English law, and I believe universally adopted in the United States. (1) There is one species of personal property in which she acquires a different interest from that which she may acquire in his other property, which is

(1) In Vermont, by statute, the widow is entitled to such part of the personal estate of her husband, as the probate court may assign to her, according to the circumstances and estate of her husband; which shall not in any case be less than one third, after the payment of the debts, funeral charges and expenses of administration; and this allowance shall be made when the widow rejects the provision which may have been made for her in the will of her husband, or the jointure or pecuniary provision, made in lieu of dower. Rev. Stat. Vt. Ch. 47. And it is believed that the same provisions, with perhaps some alterations, exist in nearly all the United States.

termed paraphernalia. This is of two kinds: the first consists of her beds and clothing, suitable to her condition in life; the second consists of her ornaments and trinkets, such as her bracelets, jewels, her watch, rich laces, and the like. As to the former, they cannot, with propriety, be considered as his es

tate, for they are not liable, upon the principles of the 38 common law, without any aid from any statute, to the pay

ment of his debts, and never ought to be inventoried as part of his estate neither can they be devised from her by will. As to the second kind, these cannot be devised from her by the husband, though he may take them from her, and dispose of them during the coverture. On the death of the husband, they vest in the wife, liable, indeed, to be taken by the executor of the husband, for the payment of his debts, provided that there are not sufficient assets beside to discharge his debts, (a) but the whole of the personal estate must be exhausted, before any resort can be had to them by the executor; her right must yield to that of creditors; but in no instance, to that of volunteers, for her paraphernalia, can never be taken to pay legacies. If the debts be paid without the aid of the paraphernalia, they become hers absolutely, and are not reckoned to make any part of her share to his personal estate, when he dies intestate.

She is often viewed as a creditor to her husband's estate, in respect of her paraphernalia; as when the husband, in his life-time, being under the necessity of raising money, pledges her jewels, &c. and dies, leaving personal property more than sufficient to pay his debts, she shall have aid of this personal estate to redeem her paraphernalia thus pledged. (b) So too, where real estate is devised for the payment of debts, and the executor takes the paraphernalia, on account of a deficiency of assets in the personal funds to pay the debts, she shall have the same right against this estate so devised for the payment of debts, to refund to her the real value of her paraphernalia, as a creditor can have, who is not paid his debt, for the want of assets. Where a real estate is given in trust (whether by deed or will) for the payment of debts, if her paraphernalia be taken by the executor, she shall be considered as a creditor to the value of her paraphernalia. So too where the personal estate has 39 been exhausted by specialty creditors, who might have gone against the heir, if they had chosen so to do, equity will direct that the wife shall stand in the place of (a) 3 Atk. 370.

(b) 3 Atk. 395.

specialty creditors as to real assets. (a) On application to chancery, the court will not suffer the paraphernalia of the wife to be taken by a specialty creditor, if there be real assets sufficient the hands of an heir or devisee. (1)

If the wife never take her paraphernalia, the executor has no claim upon them, as part of the estate of the testator, any more than a stranger, unless he wants them, through a deficiency of assets to pay debts.

In some of the states, the real estate of the husband constitutes a fund for the payment of debts of every description, after the personal estate is exhausted for that purpose. This is done in Connecticut, by the executor's application to the court of probate, in the district where the deceased dwelt; who, by law, can give power to the executor to sell the real estate of the deceased, or so much of it as will raise the necessary sum for the payment of the debts. In some of the states, the application is to the legislature, who give the same power; and the money arising from the sales, is assets in the hands of the executor. Would it not, therefore, be necessary, in such states, that the whole of the real as well as of the personal estate, should be exhausted before the executor could resort to the paraphernalia of the wife for the purpose of paying debts?

By the death of the husband, the wife becomes entitled, during her life, to one third part of the real estate of inheritance of which the husband was seized during the coverture. This estate is termed dower. (2) Of this, the husband cannot deprive her (a) 3 P. W. 80, in notes. 1 Atk. 369. 1 P. W. 729, 730. 2 do. 544.

(1) The courts sometimes go great lengths in protecting the right of the wife to her paraphernalia; thus real estate, charged with the payment of debts, will be applied before the widow's paraphernalia. Boynton v. Boynton, 1 Cox, 106. And it shall never go to satisfy legacies. Snelson v. Corbett, 3 Atk. 369. And she is held to stand as a creditor to the husband's estate to the value of her paraphernalia. So that when it is pledged, the estate will be liable to redeem the pledge. Worltrey v. Worltrey, 2 Atk. 77; Graham v. Londonderry, 3 Atk. 393. But it is said in Parker v. Harvey, 4 Bro P. C. 609, that when a man's real and personal estate are charged by his will with the payment of his debts, and afterwards turn out insufficient, his wife's jewels and paraphernalia should be sold towards making good the deficiency. As to the rights of the wife generally in this respect, see 1 Chitty's Equity Digest, 524.

(2) Litt. sect. 36; Perkins, sect. 310; New-York Rev. Stat. vol. I., 740, sect. 1; Park's Treatise on the Law of Dower, 5; Chase's Statutes of Ohio, vol. II, 1314; 1 Virginia R. C. 288; Mass. Rev. Stat. of 1835, part II, tit. 1, c. 60, sect. 1; New Jersey Stat. 1799; Elmer's Dig. 143; Rev.

by will; nor can he, by any conveyance, unless her consent be manifested, by joining with him in the conveyance. (1) It is

not necessary that there should be an actual seizin of the 40 husband; a seizin in law is abundantly sufficient; (2) and the estate must be such an one as her issue, if she had any, might have inherited. (3)

If the husband, after marriage, should lease for years, all his estate, by the English law, the wife must be endowed, though the term has not expired; and after her estate is at an end, if the term has not expired, the lessee shall again have the land of which the wife was endowed. I apprehend the law in Connecticut must be the same, for although a wife be not endowed of the land which the husband sells; for, of such he did not die seized or possessed, which our law requires; yet in this case, he did die seized and possessed, in the eye of the law; for the lessee's possession was his possession. (a) (4)

(a) Co. Litt. 46.

Laws of Missouri, 1835. In Missouri, the wife is entitled to dower, in leasehold estates of twenty years or more. In Vermont, the wife's right of

dower is to those lands of which the husband dies seized. Rev. Stat. Vt. 1839, p. 289. So in Connecticut, post page 57; and Tennessee, North Carolina and Georgia. Winstead v. Winstead, 1 Haywood, 243; Stat. of Georgia, 1826; Combs v. Yancey, 4 Yerger's Tenn. Rep. 218.

(1) Matthew v. Matthews, 1 Edwd. Rep. 565; Rowe v. Hamilton, 3 Greenleaf's Rep. 63.

(2) Bro. tit. Dower, pl. 75; Litt. sect. 448; Perk. 376; 1 Cruise's Dig. 122, 187; Dunham v. Osborne, 1 Paige, 634. As to what is sufficient evidence of her being seized, see, 1 Caine's Rep. 185; 2 John. 119; 2 Serg. & Rawle, 556. Although the husband did not die in possession of the land, the widow is entitled to dower. Galbraith v. Green, 13 Serg. & Rawle, 85. But possession of the land by the husband, claiming ownership, is prima facie evidence of seizin, to entitle the widow to dower. Jackson v. Waltermine, 7 Cow. 353. But she is not entitled unless the husband, was seized during coverture, either in fact or in law, of an estate of freehold. Shoemaker v. Walker, 2 Serg. & Rawle, 556. And where the seizin of the husband is instantaneous, or passes from him eo instanti that he acquired it, the wife cannot have her dower. Stow v. Tift, 5 John. Rep. 458. Nor will a mere technical seizin of the husband, without any beneficial interest in the estate, entitle her. Derush v. Brown, 8 Ohio Rep. 412.

(3) The statutes of New York and Virginia omit the condition in respect to the wife's issue.

*(4) 4 Kent's Com. 63-65; Bac. abr. tit. assignment of dower. Thayer v. Thayer, 14 Vt. Rep. 107.

The heir at law, within a certain limited time, is obliged to assign to her, her dower; and if he neglects, is compellable so to do by legal process. (1)

In Connecticut the law is different in some respects. The variations in our law from the common law are produced by a certain statute, which gives dower in no estate, but such of which the husband died seized. Dower is also set off to the widow by the judge of probate, who appoints two or three judicious freeholders to set it off to the widow, directing them to return their doings to the court of probate; which return, if accepted by the court, establishes the widow's right to the land set off. (2)

This estate in dower may be barred several ways; as where the husband is an alien, &c. (3) A wife who is an alien cannot be endowed, unless naturalized by act of parliament. (4)

She may be endowed, if she is created a denizen, of all the lands of inheritance of which the husband was seized at the time she became a denizen, and of those which he afterwards

(1) Bank U. S. v. Dunseth, 10 Ohio Rep. 18; Ward v. Ketts, 12 Wend. 137; Jackson v. Churchill, 7 Cow. 287; Jackson v. Donaghy, 7 John. Rep. 247; Barnet v. Barnet, 15 Serg. & Rawle, 71.

(2) In Vermont, where the widow is entitled to dower, in the real estate of her husband, she may at any time after his decease, make application to the probate court, to have such dower assigned, who thereupon appoints three disinterested freeholders, as commissioners, to set out the dower by metes and bounds, where it can be done without injury to the estate. Rev. Stat. Vt. p. 290.

(3) See Priest v. Cummings, 16 Wend. 617.

(4) Kelly v. Hamilton, 2 John. Cas. 29. But in several states the rule is different; in Maryland an alien widow, who married in the United States, and resided here at the decease of her husband, was admitted to dower. Buchanan v. Deshorn, 1 Har. & Gill, 280; the widow of an alien resident who dies in Missouri is also entitled. Stɔkes v. O'Fallon, 2 Misso. Rep. 32. By Mass. Rev. Stat. of 1835, and in New Jersey, by statute of 1799, an alien widow takes dower. In New-York, the alien widow of a natural born citizen, who was an inhabitant of the state at the passage of the act of 1802, enabling aliens to purchase and hold real estate, is dowable. Priest v. Cummings, 16 Wend. 617; but see Connoly v. Smith, 21 Wend. 59; Sutliff v. Forgey, 1 Cow. 89; S. C. 5 Cow. 713; Mick v. Mick, 10 Wend. 379. In Vermont, the statute gives the widow of every deceased person dower, and consequently aliens are not excluded. Rev. Stat. Vt. 1839.