divorce a mensa et thoro, or judicial separation only, will not destroy dower, even for adultery. (2.) She must not be the wife of a traitor. Of what may a widow be endowed? It depends entirely on the date of the marriage, that is to say, whether she claims under the ancient law or the present, viz., since 3 & 4 Will. IV. c. 105. A widow not coming within the Act is entitled to be endowed of all lands, tenements, and hereditaments of which her husband was solely seised for an estate of inheritance at any time during the coverture, and of which any issue which she might have had might by possibility have been heir, but she could not under the ancient law claim dower out of an equitable estate. By the above Act a wife's dower only extends to lands her husband dies seised of, and it is subject to his will and his debts, but it also applies to equitable estates and to a right of entry or action only. What were the various kinds of dower? (1.) Either at the Common Law, (2.) By special custom, (3.) Dower de la plus belle, (4.) Ad ostium ecclesia; or In what manner may a woman be endowed? Her dower is to be assigned by the heir of her husband, or his guardian, during the forty days she remains in the mansion house after his decease. If the heir neglects, the sheriff may assign it. If the heir or his guardian assign more than he ought to have done, it may be remedied by writ of admeasurement of dower, and the sheriff is called upon to assign it. If the thing be divisible her dower must be set out by metes and bounds, if it is indivisible she must be endowed specially, as of the third presentation to a church, &c. How may dower be barred ? By (1) elopement; (2) divorce; (3) the treason of the husband; (4) temporarily, by detaining title deeds or evidences of title from the heir; (5) by levying a fine or suffering a recovery under the old law; (6) by deed duly acknowledged in case of women married since 1st January, 1834; and (7) by jointure as regulated by the statute 27 Hen. VIII. c. 10. What is a jointure ? Strictly speaking, a joint estate, limited to both husband and wife. Sir Edward Coke defines it as follows: "A competent livelihood of freehold for the wife of lands and tenements, to take effect in profit or possesssion presently after the death of the husband, for the life of the wife at least. What are the requisites of jointure? (1.) It must be limited to take effect immediately on the death of the husband. (2.) It must be for the wife's own life at least. (3.) It must be made to herself, and no other in trust for her. (4.) It must be made and so appear in satisfaction of her whole dower, and not of any particular part of it. It might be observed that if the jointure is made after marriage, the wife has a right to elect between that and her dower. What are the comparative advantages of dower or jointure? Tenants in dower by the old Common Law were subject to no tolls or taxes, neither could the king distrain for rent. The widow may enter at once on her jointure. The assignment of dower is a tedious process. Dower is forfeited by adultery or by the treason of the husband, not so jointure. How did 3 & 4 Wm. IV. c. 105 affect the law of dower so far as the barring is concerned? As we have before seen, dower used to be barred by taking a conveyance to uses to bar dower. The method was as follows: a life estate was limited to the purchaser and after the determination of that estate by forfeiture or otherwise a remainder was limited to trustees during the life of the purchaser in trust for him, and after his death a remainder in fee was given to him. It may be seen that the intermediate estate of the trustee was sufficient to prevent the husband having at any moment during his lifetime a fee simple in possession, and therefore his wife could claim no dower; also by the aid of the Statute of Uses the husband was given a power of appointing the fee simple in such a manner as he might please, in priority to his own life interest and remainders where a marriage had taken place. But, since the date of the above Act, if it be the husband's wish, a simple declaration in the purchase deed, or in the husband's will, effectually debars the wife from her dower, and the land is subject to the husband's power of devising. CHAPTER X. ESTATES LESS THAN FREEHOLD. What is the meaning of the term chattels, and how are they divided? The general word chattels, synonymous with the Latin word catalla, comprehends all things personal, including whatever wants either the duration or the immobility attending things real; they are either (1) chattels real, or (2) chattels personal. What are chattels real and chattels personal? Chattels real are such quantities of interest in things immoveable as are short of the duration of freeholds, being limited to a time certain, beyond which they cannot subsist. Chattels personal are things moveable which may be transferred from place to place together with the person of the owner. Mention some of the principal distinctions between chattels real and freeholds of inheritance. (1.) "Livery of Seisin" was not requisite. (2.) The chattel real passed to the personal representative. (3.) The estate could be created in futuro. (4.) The tenant was merely possessed; and (5.) A chattel cannot be entailed. What are estates less than freeholds? There are three sorts; (1) estates for years; (2) estates at will; (3) estates by sufferance. What is an estate for years? It is an interest which a man has usually by deed in the possession of lands and tenements for some determinate period, as where lands and tenements are let to another for a certain period of time, which transfers the interest of the term, and the lessee enters; this gives him possession of the term but not the legal seisin. Why is an estate for years called a term? From the Latin word terminus, because it must expire at a certain period, or, in other words, its duration is limited. Explain the meaning of the maxim id certum est quod certum reddi potest. "That is certain which is reducible to a certainty." Therefore, a man may grant a lease to another for so many years as J. S. shall name, because when J. S. names the number of years, it is reduced to a certainty. If no day of commencement is named, it begins from the making or delivery of the lease. How is an estate for years created? Originally by agreement, verbal or written, perfected by entry, but the 1st and 2nd sections of 29 Car. II. c. 3, require a lease for a term exceeding three years, or where less than two-thirds of a rack-rent is reserved, to be in writing; and 8 & 9 Vict. c. 106, s. 8, requires such leases to be by deed. The estate is limited to a man, his "executors and administrators." What are the incidents to a tenancy for a term of years? (1) Estovers, and (2) emblements, if the estate determines before the full end of the term-otherwise than by the tenant's own act-subject of course to 14 & 15 Vict. c. 25, before alluded to; and (3) he is liable to waste. What is an interesse termini ? It is merely the right of entry in the tenements mentioned above. It is assignable, and if the lessee dies before entry, the interesse termini passes to his executors. What is an estate at will, and how is it created, and what are the incidents ? Where lands are let by one man to another to hold at the will of both, and the lessee enters thereon. The estate, if perfected by entry, may be created by (1) written. agreement; (2) verbally; (3) construction of law. The tenant is entitled to emblements, unless he determine the tenancy, and he is liable for voluntary waste. What amounts to a determination of the tenancy? (1) Express determination of the lessor's will by notice; (2) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber; (3) making a lease for years, to commence immediately; (4) by lessee's committing waste or any act of desertion, as assigning his estate, or (5) the death or outlawry of either lessor or lessee. What have tenancies at will of late been held to be, and what notice to quit is necessary? Tenancies from year to year, as long as both parties please, especially where an annual rent is reserved. Six months' notice to quit is necessary, expiring with the current year of the tenancy. How may a tenancy from year to year be created? (1.) By express agreement, which may be by parol if the For what length of time must a tenancy for one year certain, and so on from year to year, endure? For two years certain, because the notice to quit cannot be given until the middle of the yearly tenancy, which does not com |