1. Cessante statu primitivo cessat derivativus, is a maxim in the law, and upon this maxim is founded the rule that the dower estate of the wife can only be commensurate with the primitive estate from which it is derived. We have just seen that the determination of an estate in fee simple or fee tail, by its natural or regular limitation, does not defeat the right of dower. It has also been shown that this result is not attributable to any exception to the foregoing rule, as is sometimes supposed, but is in harmony with it. The dower estate of the widow, in such cases, exists by implication of law as a part of the estate embraced in the original limitation to the husband. The quantum of enjoyment designated in the grant is held not to be exhausted until after the death of the widow. So long as there are heirswhere the estate is limited in fee simple; or issue, where it is limited in fee tail-the entire estate continues to exist. So long as there is a dowress, the estate has a partial continuation.' There are cases of limitation by way of shifting use, and executory devise, to which this doctrine is also supposed to apply, but in respect of which, differences of opinion exist, as will be explained hereafter. As regards ordinary determinable cases, however, the maxim above quoted, and the rule founded thereon, are of general, if not universal application. Subject to the qualification above stated, the general doctrine is, that if the estate of the husband be, in its own nature, an estate of inheri

1 Park, Dow. 183-5.

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2 Post, 15 et seq.

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tance, the fact that it has a determinable quality attached to it will not prevent the inception of a title of dower; but when that estate, by reason of its determinable quality, is avoided or defeated, the right of dower falls with it.

Defeasible estates.

2. Defeasible estates-having reference now to such estates as are acquired by a tortious entry, or other equivalent act of disseisin are, as already shown, subject to dower.' But dower being an interest annexed to the defeasible estate, it follows that it is avoided upon the restoration of the seisin to the rightful owner under his prior title. In these cases the seisin of the owner is not merely determined, but it is defeated, or, as the old books still more expressly term it, is disaffirmed. The restoration of the original seisin is considered as not merely a giving back to the owner of that which had been unjustly taken from him, with all the prejudice of an intermediate ownership, but, in intendment of law, it is considered as purging and abolishing the intermediate seisin, and all its consequences, and, for the purposes of title, negativing the existence of such seisin. The person having the right is not merely restored to his right, but he is placed in statu quo.3 Therefore, if the owner of an estate be disseised, and the disseisor marry, and afterwards the disseisee enter upon, or recover against the disseisor, the title of dower in the wife of the disseisor is thereby defeated. And if the disseisor die seised, and his heir actually endow the widow, and the disseisee afterwards recover the lands by judgment against the heir and dowress, the estate of the dowress is at an end.5

Estates upon condition.

3. Care must be exercised not to confound estates upon condition with estates created under conditional limitations. The former can only be defeated by entry for condition broken, and,

1 Ante, ch. 12, 31, 32.

8 See Litt. sec. 358; 1 Roll. Abr. 474.

4 Countess of Berkshire v. Vanlore, Winch. 77.

2 Gilb. Uses, 399.

6

5 Park, Dow. 141, 142; Co. Litt. 420, b.; Dyer, 41, a.; Tud. Cas. 44; 2 Crabb, Real Prop. 165.

See ch. 12, 14.

when this is done, the old paramount title is reassumed. In the latter, upon the happening of the event or condition which is to terminate the estate, it ipso facto ceases, and, by the terms of the grant or devise, shifts to another person.1

4. An estate held upon condition, so long as it is not avoided by entry for forfeiture, is subject to dower; but when the estate is determined by such entry, the right of dower which depends upon it is also determined. Thus, if an estate be granted in fee or in tail upon condition to be performed by the grantee, and the grantor enter for breach of the condition; or if the grant be upon condition to be performed by the grantor, and he duly perform the condition, and enter, the wife of the grantee is not entitled to dower.3 And if a portion only of the estate of the husband be defeated by force of the condition, as where the condition is annexed to the freehold only, yet as the operation of that condition deprives the estate of that quality which renders it subject to dower, and converts it into an estate in remainder or reversion, the title of dower is equally avoided the former seisin being disaffirmed by entry for the breach-as where the whole estate is defeated. To this principle may be referred the case already put of a surrender upon condition, by the lessee for life to the reversioner, by force of which the wife of the reversioner becomes dowable, but where, if the lessee enter for condition broken, the estate of dower is defeated.

5. A case was recently determined, in New York, involving the application of this principle. A tenant for life executed a lease for the term of her own life, to the reversioner, upon condition that the rent should be paid according to the terms of the lease. The lessee failed to perform this condition, and the lessor thereupon entered for the breach. The reversioner having died during the lifetime of the tenant for life, it was held that the forfeiture of the lease and subsequent re-entry for condition

14 Kent, 32, 33, note; 1 Washb. Real Prop. 212, 32; 1 Hilliard, Real Prop. 114, 24. As to dower in estates created by way of conditional limitation, or executory devise, see infra, 2 15-38.

2 Ch. 12, 14.

3 Park, Dow. 154;

Roll. Abr. 474; Perk. secs. 311, 312; Ley, 299, arg.; Butler's note, 4, Co. Litt. 241, a.; 4 Kent, 49; 1 Washb. Real Prop. 208, 26; Beardslee v. Beardslee, 5 Barb. 324.

4 Ante, ch. 11, 14; Park, Dow. 154.

broken, operated to defeat his freehold estate, ab initio, and consequently that his widow was not dowable of the lands.1

Base and qualified fees.

6. A base fee, carved out of an estate tail, or a qualified fee, as the Duchy of Cornwall,3 will confer a right of dower as against all persons claiming those estates.

It was for a long time the opinion of eminent lawyers, that under alienations by tenant in tail, not creating a discontinuance, nor operating as a bar, namely, by grant, bargain and sale, or other innocent conveyance, the alienee had a mere descendible freehold, simply determinable with the death of the tenant in tail. This opinion is supposed to have been founded on several passages of Littleton, in the chapter on Discontinuances, where, speaking of such conveyances in opposition to tortious alienations, which, as they can only be avoided by the action of the issue or remainder-man, are therefore indefeasible till so avoided, he treats them as conveyances passing an estate determinable upon the death of the tenant in tail; meaning nothing more, probably, than that the mere entry of the issue when their title accrued, without anything further, avoids them. In The Case of Fines, (determined in the 44th of Elizabeth,) a correct exposition was put upon the text of Littleton, and it was there said, that "his intent was not that the grantee had but an estate for life, and that his estate should be absolutely determined by the death of tenant in tail, but that it was not a discontinuance; nor had the grantee any fixed or durable estate, but for the life of tenant in tail; but that the issue after his death might at his pleasure determine it; and if the grantee

1 Beardslee v. Beardslee, 5 Barb. 324; see, also, Moore v. Esty, 5 N. H. 479; ante, ch. 11, 14. Mr. Hilliard states the rule differently: "If the life estate cease for a time, though afterwards reinstated, the widow of the reversioner has dower on account of the temporary seisin. Thus, if lessee for life surrender to the reversioner on condition, and enter for condition broken, the widow of the latter shall be endowed." 1 Hilliard, Real Prop. 2d ed. 133, 43. This exhibition of the law does not appear to be supported by the authorities. In addition to the cases above referred to, see authorities cited in notes to ? 2, 3, and 4 of this chapter.

2 The Case of Fines, 3 Co. 84, b.; Seymor's case, 10 Co. 96, a.; Co. Litt. 241, a., n. 4; Jenk. 274, pl. 96; Machell v. Clark, 2 Raym. 778; 1 Cruise, 162, 6; 1 Jarman on Wills, 792; 4 Dane's Abr. 668; 1 Washb. Real Prop. 175, 7; Jackson v. Kip, 3 Halst. 241; see Whiting v. Whiting, 4 Conn. 179.

3 Jenk. 280, pl. 5; Park, Dow. 50.

4 Litt. secs. 598, 600, 606–608.

5 The Case of Fines, 3 Co. 84.

in such case should have but an estate for life of tenant in tail, then the wife of such grantee should not be endowed; against which it was adjudged in 24 E. III. 28, b.”1 In Seymor's case1

3

the nature of the estate of an alienee of tenant in tail was also fully considered, and by the first resolution of the judges the wife was held dowable of that estate. But, from some cause, the report of Lord Coke left the question in a very unsatisfactory condition, for the inference from the resolution that the bargainee had an estate of inheritance, is, in a great measure, negatived by the language of the report, which represents the court throughout as treating the estate, so far as it was dependent upon the bargain and sale, as a mere descendible freehold, determinable on the death of the tenant in tail, and expressly taking the distinction between a descendible freehold under the bargain and sale, and a base fee under the subsequent fine to the use of the bargainee. This inconsistency occasioned subsequent judges to hesitate in admitting Seymor's case as an authority on the question of dower. Chief Justice Vaughan, in particular, in an anonymous case, in which it was held that the bargainee of a tenant in tail had a mere descendible freehold, asks, "How is it possible that such a tenant, who by the very book in the tenth report Seymor's case, hath but a descendible freehold, how comes he to be so distinguished from other tenants that his wife shall be endowed ?" "I can not see how she can. There is no reason to difference it from other estates of freehold, determinable upon other acts and accidents, so long as Paul's steeple shall stand." The interpretation put npon the text of Littleton, in The case of Fines, was again overlooked in Took, v. Glascock,' in which it was held, that by the bargain and sale of a tenant in tail, nothing passes but an estate descendible for the life of the bargainor. But the law was finally settled in Machell v. Clarke," where, after solemn argument, it was adjudged that the bargainee has a base or determinable fee, and that his estate continues until it is avoided by the entry of the issue in tail. The authority of Seymor's case was admitted as

1 See, also, Fitzh. Dow. 98.

2 Seymor's Case, 10 Co. 95; s. c. 1 Bulstr. 163, by name of Heywood v. Smith. 3 Anon., S. Carter, 210.

4 Took v. Glascock, 1 Saund. 260.

5 Machell v. Clark, 2 Raym. 778; 2 Salk. 619; 7 Mod. 18; 11 Mod. 19; 1 Comyn,