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declaration in any deed or instrument giving or devising estates of inheritance, may make the estate of the donee or devisee not subject to his wife's dower; but these enactments are not to prevent courts from enforcing, on equitable principles, covenants or agreements of husbands not to bar the right of dower, nor to prevent the barring of dower by agreement or settlement, or its forfeiture by adultery (k).

"We do not propose at present to extend the alterations of the law of dower to gavelkind lands or borough- English lands, or to copyhold or customary lands, as to all which the right to dower or freebench is regulated by a variety of peculiar customs (1). We deem it expedient to postpone the recommendation of any further alteration of the laws relating to those several tenures, until the whole subject shall come under our view." (1 Real Prop. Rep. 16-19. As to tenures, see 3 Real Prop. Rep. 3–22.)

(a) See Co. Litt. 32 a. Lyster v. Mahoney, 1 Dru. & War. 236. (b) The widow of a man to whom an estate was devised in fee, with a limitation over to the testator's heir, in case the devisee had no children or issue, was held to be entitled to dower. (Moody v. King, 10 Moore, 223; S. C., 2 Bing. 447; Smith v. Spencer, 4 W. R. 729.)

3 & 4 Will. 4,

c. 105, s. 1.

New rules not to extend to copyholds, &c.

Out of what property a woman is entitled to dower.

Dower is due of mines wrought during coverture, whether by the hus- Mines. band or by lessees for years, whether paying pecuniary rents or rents in kind, and whether the mines are under the husband's own land, or have been absolutely granted to him to take the whole stratum in the lands of others. Such a grant is a grant of a real hereditament in fee simple. But dower is not due of mines or strata unopened, whether under the husband's soil or under the soil of others. If lands assigned for dower contain an open mine, tenant in dower may work it for her own benefit. (Stoughton v. Lee, 1 Taunt. 401; Dickin v. Hamer, 1 Dr. & Sm. 284.)

A widow dowable out of the real estate of her husband, not having done any act to preclude her from doing so, may claim one-third of the income of the proceeds arising from the royalties of mines opened after her husband's decease, but she is not entitled to one-third of the royalties as corpus. (Dickin v. Hamer, 1 Dr. & Sm. 284.)

The heir has no right to denude the estate of timber as against the Timber. dowress; therefore, where a testator died seised of certain estates, out of which his widow was entitled to dower, the heir of the testator entered into possession of the estates and cut down timber, the produce of which timber was paid into court: it was held, that the widow was entitled to a third of the produce for life. (Bishop v. Bishop, 5 Jur. 931; Dickin v. Hamer, 1 Dr. & Sm. 284.)

Where land belonging to an infant, subject to his mother's right of dower, was taken by a railway company, and the purchase-money as determined by two valuers was paid into court under the Lands Clauses Act: held, that the dowress was entitled to have the value of her right of dower, as determined by the valuers, paid to her out of the fund in court. (Re Hall's Estate, L. R., 9 Eq. 179.)

See, further, as to the property out of which a woman is entitled to dower, and the requisites to dower, the note to sect. 2, post; Tudor's L. C., Conv. 55 et seq., 2nd ed.

(c) In consequence of two maxims of the common law-first, that no Legal jointures. right can be barred until it accrues; and, secondly, that no right or title to an estate of freehold can be barred by a collateral satisfaction-it was impossible to bar a woman of her dower by any assignment or assurance of lands, either before or during the marriage. (Vernon's case, 4 Rep. 1; Co. Litt. 36 b.)

Before the passing of the Statute of Uses (27 Hen. 8, c. 10), the greater part of the lands in England having been conveyed to uses which were not liable to dower, (Dyer, 266, pl. 7; 4 Rep. 1 b,) it was usual to make a provision for the wife before marriage out of the husband's lands. (3 Řep. 58 b; 4 Rep. 1 b; Wilmot's Notes, 184, 185.) The Statute of Uses having transferred the legal estate to the cestui que use, all women then married would have become dowable of lands held to the use of their husbands, and retained their title to lands settled on them in jointure. To prevent that

3 & 4 Will. 4, c. 105, s. 1.

Equitable jointures.

injustice, it is by the 6th section of the Statute of Uses declared, that a woman having an estate in jointure with her husband (five species of which are enumerated) shall not be entitled to dower; and the 9th section reserves to the wife a right to refuse a jointure or to claim her dower. (See Wilmot's Notes, 184, &c.) It was decided that the species of estates enumerated are proposed only as examples, and the courts have in construction extended the operation of the statute to other instances within its principle, though not within its words. (4 Rep. 2 a.) By the effect of that statute, therefore, no widow can claim both jointure and dower. Jointure before marriage is a peremptory bar of dower; jointure after marriage she has an option to renounce. (1 Swanst. 429, n.) A jointure within that statute is defined to be a competent livelihood of freehold to 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, if she herself be not the cause of its determination or forfeiture. (Co. Litt. 36 b, 37.)

According to Lord Coke (Co. Litt. 36 b), there are six requisites to a strict legal jointure, viz., 1st. The provision for the wife must by original limitation take effect in possession or profit immediately after the husband's death. (Wood v. Shirly, Cro. Jac. 488.) 2nd. It must be for the term of her own life, or greater estate. (Dyer, 97 b.) 3rd. It must be made to herself, and no other for her. 4th. It must be made in satisfaction of the whole, and not of part of her dower. 5th. It must be either expressed or averred to be in satisfaction of her dower. (See 9 Mod. 152; 3 Atk. 8; 1 Ves. sen. 54; 4 Ves. 391.) And 6th. It may be made either before or after marriage. (4 Rep. 3.)

A feme covert is not competent during the coverture to elect between a jointure made to her after marriage and her dower at common law. The consent of a married woman to release her jointure, and accept an allowance during the life of her husband, who was a lunatic, without prejudice to her right to dower, was held not to be binding upon her after his decease. (Frank v. Frank, 3 My. & Cr. 171.)

A jointure settled on a wife by articles, to which she was not a party, will not deprive her of dower; (Earl Buckingham v. Drury, 3 Br. P. C. 497; S. P. Daly v. Lynch, Ib. 48;) but an infant having before her marriage a jointure made to her in bar of dower, is thereby bound and barred by the stat. 27 Hen. 8, c. 10. (Ib.)

(d) In equity, a trust estate, an agreement to settle lands as a jointure, or a covenant from the husband that his heirs, executors, or administrators would pay an annuity to his wife, for her life, in case she survived him, in full for her jointure and in bar of dower, without expressing that it should be charged on lands, or, in short, any provision, however precarious, and whether secured out of realty or personalty, which an adult before marriage accepts in lieu of dower, is a good jointure. (Earl Buckingham v. Drury, 5 Br. P. C. 570; 4 Br. C. C. 506; Wilmot's Notes, 177; Charles v. Andrews, 9 Mod. 152; Williams v. Chitty, 3 Ves. jun. 545; Tinney v. Tinney, 3 Atk. 8; Carruthers v. Carruthers, 4 Br. C. C. 500; Estcourt v. Estcourt, 1 Cox, 20; Simpson v. Gutteridge, 1 Madd. R. 613; 4 Rep. 2 a, n. by Thomas; Harg. Co. Litt. 36 b, n. (5); Sugd. V. & P. 543, 544, 11th ed.; Dyke v. Rendall, 2 De G., M. & G. 209.) A future contingent provision, accepted by an adult female upon her marriage in lieu of dower, is in equity a valid bar to dower. (In re Herons, 1 Flan. & K. 330. See Power v. Sheil, 1 Moll. 312; Williams v. Chitty, 3 Ves. 545; Corbet v. Corbet, 1 Sim. & St. 612; 5 Russ. 254.)

A wife had a jointure secured on her husband's estate X. In 1844, the husband contracted to purchase an estate Y., and to enable him to sell the estate X., the wife, in 1845, released her jointure, and he then covenanted to secure it out of "estates he should thereafter acquire." Before the estate Y. had been conveyed, the husband contracted to sell it: it was held, that in equity the estate Y. was charged with the jointure. (Warde v. Warde, 16 Beav. 103; Wellesley v. Wellesley, 4 My. & Cr. 554.)

By a settlement made on the marriage of an adult female, it was declared that in consideration of the intended marriage, and "for providing a competent jointure and provision of maintenance" for the wife and issue of the

marriage, the father of the husband had paid him 3,000l., and that the husband had given a bond for the payment of 2,000l. six months after the marriage, to be settled on trusts for the benefit of himself, his wife and the issue of the marriage. During the coverture the husband bought certain lands which he subsequently sold to a purchaser from whose devisees the defendant purchased with notice of the settlement. The husband died without satisfying the bond. On a bill by the wife for dower out of the lands so sold it was held, that her right was barred by the settlement, and that she had no lien on or right to resort to the lands to the satisfaction of the amount due on the bond. (Dyke v. Rendall, 2 De G., M. & G. 209; 16 Jur. 939; 21 Law J., Chanc. 905.)

Marriage articles were executed by a tenant in tail in remainder, and his intended wife, whereby he agreed to execute, when he should become entitled in possession, a legal post-nuptial settlement, to secure her a jointure of specified amount. He subsequently became entitled in possession, but died intestate without executing any such settlement. Held, that the articles were a bar in equity to the wife's right of dower. (Pennefather v. Pennefather, I. R., 6 Eq. 171.)

By marriage articles the intended husband covenanted that in case he should die in the lifetime of his intended wife, without issue by her, she should be entitled to one-half of what property, real or personal, he should die seised or possessed of; and that in preference to any creditor of his, or to any deed or will which he might make or execute in his lifetime, contrary to the true intent and meaning of the articles. There was no issue of the marriage; and the husband died, leaving his wife surviving: she is not entitled, in addition to the moiety of her husband's real and personal estate given to her by the articles, to dower out of the other moiety of his real estates of inheritance. (Hamilton v. Jackson, 2 Jones & Lat. 295.) The wife's claim on the personal estate of her intestate husband was held to be barred by a settlement on her marriage of a certain sum that was in trust for her for life "as and for her jointure, in full lieu, bar and satisfaction of any dower or thirds which she could or might claim at common law, out of all or any of the estates, real, personal or freehold" of her intended husband. (Gurly v. Gurly, 8 Cl. & Finn. 743.)

A marriage settlement contained a clause that the provision thereby made, and intended for a wife in the event of her viduity, should be accepted, deemed and taken in full lieu of dower or thirds, to which she might be entitled at common law or otherwise howsoever; it was held, that she was barred of her share of her husband's personal estate, under the Statute of Distributions. (Re Burgess, 11 Ir. Chanc. Rep., N. S. 164.)

The word "thirds" is not confined to real estate, but is a general expression which may signify, according to the context and scope of the instrument, the interest of a widow in any property, whether personal or real, of her deceased husband. In construing a stipulation in a marriage settlement, that the provision thereby made for the intended wife is "in lieu of dower or thirds," the court considers the fund out of which the provision was made. Where, therefore, by an ante-nuptial settlement the provision thereby made for the intended wife was partly charged on personalty of the intended husband, who had children by a former marriage: it was held, on his dying intestate, that the claim of his widow to a distributive share in his personal estate was barred by a stipulation in the above words. (Thompson v. Watts, 2 J. & H. 291. See Sambourne v. Barry, I. R., 6 Eq. 28.)

As to the law of jointures, see 1 Rop. on Husband and Wife, by Bright, c. 10; Cruise's Dig. tit. VII.; Bac. Abr. Dower and Jointure (G.); Gilb. on Uses, by Sugd. p. 321, &c.

(e) See note to sect. 2, post.

3 & 4 Will. 4,

c. 105, s. 1.

Where widow

barred of distributive share in hus

band's personalty.

attending the inheritance.

(f) The result of the cases as to the doctrine of attendant terms before Terms of years the stat. 8 & 9 Vict. c. 112, was, that when there was an old term that was satisfied, the inheritance being the estate, the interest in the term attended upon it. If there were a first, second and third mortgagee, they were, according to their respective gradations, entitled to the benefit of the term. It was possible that some or all of them might not know of its existence;

3 & 4 Will. 4, c. 105, s. 1.

Uses to bar dower.

Forfeiture of

dower by adultery.

and according to the practice of conveyancers, sanctioned by and perhaps growing out of the doctrines of courts of equity, if a subsequent incumbrancer, without notice, got in the term, he gained a priority: if, at the time of advancing his money, he had notice of the previous incumbrances, he did not gain priority. (Per Lord Eldon in Mole v. Smith, Jac. R. 496. See Radnor v. Vandebendy, Show. P. C. 69; Pr. Ch. 65; Swannock v. Lifford, 2 Atk. 208; Ambl. 6; Co. Litt. 208 a, n.; Willoughby v. Willoughby, 1 T. R. 763.)

An heir, though he could avail himself at law of a term attendant upon the inheritance, was not allowed in a court of equity to defeat the widow's claim of dower; for, having a certain quantity of interest, equity considered her as having a corresponding interest in the term. When the husband conveyed to a purchaser, without the concurrence of the wife, nothing but the husband's estate passed subject to dower, which remained as it was. (Maundrell v. Maundrell, 7 Ves. 578; S. C., 10 Ves. 246) But a purchaser for valuable consideration, or a mortgagee, (Wynn v. Williams, 5 Ves. 130,) might protect himself from dower by taking an actual assignment of a term created before the right of dower attached, to a trustee for himself, or a declaration of trust from the trustee, or by obtaining possession of the deed creating the term, (7 Ves. 567; 10 Ves. 246,) notwithstanding he had notice of the right of dower. (10 Ves. 271; see Butl. Co. Litt. 290 b, n. 1, s. 13. See In re Sleeman, 4 Ir. Ch. R. 563; 8 & 9 Vict. c. 112, post.) A purchaser, in 1840, obtained possession of a deed creating an attendant term, but did not procure an assignment of the term it was held, that he could not rely on this term as a bar to a claim for dower. (Corry v. Cremorne, 12 Ir. Ch. R. 136.)

In Mole v. Smith, (Jac. R. 490; S. C., 1 Jac. & W. 665,) an attendant term having become vested in the wife of the owner of the inheritance, as the administratrix of the trustee of the term, and her husband having become a bankrupt, his assignees agreed to sell the estate, and filed a bill for a specific performance of the agreement, pending which suit the busband died it was held, that the widow was not entitled to dower, that she must assign the term for the benefit of the purchaser, and that he was bound to accept the title. (See also Anderson v. Pignet, L. R., 8 Ch. 180, post.) (g) See Simpson v. Gutteridge, 1 Mad. 609; Corbet v. Corbet, 1 Sim. & St. 612; 5 Russ. 254; Sugd. V. & P. 542, 11th ed.

(h) The form of limitation to uses to bar dower, which has been almost universally adopted, was in effect to such uses as the purchaser should by deed appoint in default of and until appointment to the purchaser for life, remainder to a trustee and his heirs during the life of and in trust for the purchaser, remainder to the purchaser, his heirs and assigns. (See Gilb. on Uses, by Sugd. 321-325, n.; Fearne, 347, n. by Butl. 7th ed.; 2 Davidson Conv. 210.) As to the form of these uses, see 3 Davidson Conv. 249, note (0).

A vendor being entitled under a limitation to uses to bar dower without a power of appointment, the purchaser insisted on the concurrence of the dower trustee. The trustee being abroad, the vendor filed a bill to enforce specific performance without his being a party to the conveyance. The Vice-Chancellor held, that the objection was well founded, and made a decree for specific performance, with an order vesting the estate of the dower trustee in the purchaser, upon the execution of the conveyance by the vendor; but considering the objection, though tenable, to be frivolous and vexatious, he gave no costs to either party: it was held, on appeal by the purchaser, that the objection was frivolous and vexatious, and ought not to have been insisted on, and that costs ought not to be given to the purchaser. (Collard v. Roe, 4 De G. & J. 525.)

A limitation to the old uses to bar dower will not deprive of her dower a woman married since the passing of the Act. (Fry v. Noble, 7 De G., M. & G. 687.)

(i) See notes to sect. 5 and sect. 9, post.

(k) Under 13 Edw. 1. c. 34, a woman forfeits her dower by adultery, even though brought about by her husband's cruelty. (Hetherington v. Graham, 6 Bing. 139; Woodward v. Dowse, 10 C. B., N. S. 722; Bostock

v. Smith, 34 Beav. 57.) The divorce of a wife à mensâ et thoro by the Ecclesiastical Court before 20 & 21 Vict. c. 85 for adultery, without any renewal of cohabitation, does not preclude her from obtaining her distributive share in the personal estate of her intestate husband in an administration suit by his executors. (Rolfe v. Perry, 11 W. R. 357.)

3 & 4 Will. 4,

c. 105, s. 1.

(1) This act extends to lands of gavelkind tenure. (Farley v. Bonham, Gavelkind lands 2 Johns. & H. 177; 7 Jur., N. S. 232.) But copy holds are not within this and copy holds. statute. (Powell v. Jones, 2 Sm. & G. 407.) As to freebench in copy

holds, see further the note to sect. 5, post.

In the assignment of dower, courts of equity have assumed a concurrent Remedies for the jurisdiction with courts of law. (Mitford, 120-123.) See further the note recovery of dower. to 3 & 4 Will. 4, c. 27, s. 36, ante, p. 226. As to the remedy in equity, see

Daniell's Ch. Pr. 1035, 5th ed.

A widow filed a bill for dower against alienees of her husband. In order to make out her title to dower she was obliged to give in evidence a deed, by which the estate had been conveyed to the person from whom her husband claimed. This deed contained a recital that the legal estate was outstanding in trustees. She also gave in evidence certain orders of the Court of Chancery, to show that such recital was mistaken: it was held, that she was entitled to a reference to ascertain the lands of which she was dowable. (Kernaghan v. M'Nally, 11 Ir. Ch. Rep., N. S. 52.)

Where a dower suit was not occasioned by any difficulty as to the assign- Costs in equity. ment or mode of payment of the dower, but solely by the defendant not having admitted the title till he put in his answer to the bill of the widow, she was allowed her costs up to the hearing. (Harris v. Harris, 11 W. R.

62. See also as to costs, Stormont v. Wickens, 14 W. R. 192.)

It seems that purchase for value without notice is a good defence to a Plea of purchase suit instituted to recover dower (see ante, p. 226). It has accordingly been for value without held at law that a demandant in dower is not entitled, under 17 & 18 Vict. notice.

c. 125, s. 50, to inspection of the deed under which the property, out of which she claims to be endowed, was conveyed away by her husband as against a bona fide purchaser for value, without notice of the marriage, the balance of authorities being assumed to be in favour of the position, that a bill for discovery could not be sustained in such a case. (Gomm, dem., Parrott, ten., 3 C. B., N. S. 47; 3 Jur., N. S. 1150; 26 Law J., C. P. 279.) As to the period in which the right to sue for dower is barred, see Marshall v. Smith, 5 Giff. 37, ante, p. 145. As to the arrears of dower which may be recovered, see ante, p. 249.

DOWER OF EQUITABLE ESTATES.

out of equitable

2. When a husband shall die, beneficially entitled to any Widows to be enland for an interest which shall not entitle his widow to dower titled to dower out of the same at law, and such interest, whether wholly estates. equitable, or partly legal or partly equitable (m), shall be an estate of inheritance in possession, or equal to an estate of inheritance in possession, (other than an estate in joint tenancy,) (n) then his widow shall be entitled in equity to dower out of the same land.

(m) The general principle on which courts of equity have proceeded in cases of dower is, that dower is to be considered as a mere legal right; and that equity ought not to create the right, where it does not subsist at law. Nothing can be more striking than the inconsistency of the doctrine which subjected trust estates to the right by curtesy, while it exempted them from the claim of dower. Courts of equity had assumed as a principle, in acting upon trusts, to follow the law; and, according to that principle, they ought, in all cases where rights attached on legal estates, to have attached the same rights upon trusts, and consequently to have given dower of an equitable estate. It was found, however, that in cases of dower, that principle, if

According to old law, dower not

allowed out of equitable estates.

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