1. THE doctrine of the common law excluding dower from estates held in joint tenancy has already been adverted to.' It is thus stated by Littleton: "And it is to be understood that the wife shall not be endowed of lands or tenements which her husband holdeth jointly with another at the time of his death." It is difficult to trace the origin of this rule. The earliest textbooks in which it is laid down appear to be Fitzherbert's Natura Brevium and Rolle's Abridgment.3 It is also found in the text of Brooke. In the Natura Brevium, the 34 Edward I., "Dower," 179, is cited. Brooke cites and relies upon the 3d Henry IV., page 6; but all the treatises fail to give the particulars of these cases, or the reasoning upon which they were determined, stating simply the naked point decided. Chief Baron Gilbert has supposed the rule to be referable to feudal principles: "In that case of joint tenancy," he says, "during the joint seisin, the wife's contract of dower can never attach upon the estate, because the other joint tenant comes in by the feudal contract, superior to the marriage contract; so to the wife's infeudation; for though the marriage contract had been prior to the joint tenancy, yet it will not attach upon it, because the estate in joint tenancy is so created that it should survive. Et cujus dare

Chap. 12, 33-35.

3 Fitzh. N. B. 147. (E.); Ibid. 150; 1 Roll. Abr. 676.

2 Litt. 45.

4 Bro. Dow. pl. 30. The point is also decided as to curtesy, in Cowley v. Anderson,

Toth. 83.

ejusdem disponere; therefore, though the marriage were precedent, yet it can not take place upon this infeudation." Lord Coke's explanation of the rule is in these words: "The reason of this diversity is for that the joint tenant, which surviveth, claimeth the land by the feoffment, and by survivorship, which is above the title of dower."2

2. So long as the rule is confined within the limits fairly implied in the text above quoted from Gilbert and Coke, the reasoning upon which it proceeds is very easily understood. As against the survivor, it is plain there can be no dower, because, from the very nature of the estate, and by virtue of the original grant, the entire interest becomes absolutely vested in him upon the death of the cotenant. The rule, however, as established, goes much further than this, and not only denies dower as against the survivor, but absolutely precludes it from attaching during the existence of the joint estate. The principle upon which this extreme doctrine rests is not entirely obvious. There is no essential quality in a joint estate necessarily incompatible with the existence of an inchoate dower interest, and by analogy to the cases of estates determinable by condition, or by title paramount, it would seem perfectly consistent with principle to hold that the right of dower attaches upon such estate, subject only to be defeated by the survivorship of the cotenant of the husband. But the doctrine of the common law is too well settled to be shaken at the present day;3 and, indeed, is carried into the dower act recently adopted in England.

3. One consequence resulting from this rule is, that if the husband sever the joint estate by conveying his share to a third person, the right of dower is thereby entirely defeated. Ordinarily any act which determines the joint tenancy during the 2 Co. Litt. 37, b.

1 Gilb. Uses, 404. 3 Supra, ch. 14,

5 Litt. sec. 45; 1 Roll. Abr. 676; Fitzh. N. B. 147, (E.) and 150; Bro. Dow. pl. 30; Co. Litt. 31, b.; Cowley v. Anderson, Toth. 83; Sutton v. Rolfe, 3 Lev. 84; I Roper, Husb. and Wife, by Jacob, 367; Perk. sec. 334; Park, Dow. 37, 40; Watk. on Conv. 42; 3 Prest. Abstr. 367; Burton, Real Prop. & 353; 4 Kent, 37; Mayburry v. Brien, 15 Peters, S. C. R. 21; Hamblin v. Bank, &c., 19 Maine, (1 Appl.) 66; see ch. 12, 33 et seq.

6 3 & 4 Will. IV., ch. 105, 2. See Appendix.

7 Fitzh. N. B. 150; Bro. Dow. pl. 30; Co. Litt. 31, b.; 1 Roper, Husb. and Wife, by Jacob, 367; Park, Dow. 39; 4 Kent, 37; Mayburry v. Brien, 15 Pet. 21. [Cockerill v. Armstrong, 31 Ark. 580.] Supra, ch. 12, 2 33.

lifetime of the husband, entitles the wife to dower; but it is held that where the joint estate is severed by the alienation of the husband, the sole seisin acquired by him in virtue of the conveyance is instantaneous only, and passes from him by the same act by which he acquired it, and, therefore, that no right of dower attaches. Had a contrary doctrine prevailed, and dower been held to attach upon the joint estate, subject only to be defeated by survivorship, then, upon the determination of the joint tenancy by the alienation of the husband, and the consequent destruction of the possibility of survivorship, the right of the wife would become fixed, liable only to be defeated by her own act, or by her decease in the lifetime of the husband.

4. The rule denying dower to joint estates applies where either the life estate or the estate of inheritance is of that character. In order to confer dower, there must be a sole seisin, both of the freehold and of the inheritance. Some instances of the application of this principle have been noticed in a previous chapter.3 But a sole seisin of the freehold and inheritance, in any particular share of the lands, is sufficient to give dower in that share, even though the remainder of the estate be held by a joint seisin.'

5. Except where the joint estate is terminated by the alienation of the husband," the rule is that any act which severs the joint tenancy, and clothes the husband with a sole seisin at any time during the coverture, entitles the wife to her dower." And where the joint estate is severed by the conveyance of his share by one of the joint tenants, although his wife can not have dower in the portion conveyed, the principle of exclusion does not extend to the wife of the grantee. As to her the right of dower attaches immediately upon the taking effect of the conveyance.'

Statutory modifications in the United States.

6. In the United States very material changes have been made by statute in the common law relating to estates in joint

1 See ch. 12, 33.

8 Ch. 11, 32; ch. 12, 33.

2 Park, Dow. 39, 40; supra, ch. 12, 33.

Supra, ch. 12, 33. For instances of a joint seisin rendered sole ab initio, so as

to enable dower to attach, see ante, ch. 12, 22 34, 35.

5 Sce ante, 23.

Gilb. Uses, 404; Perk. sec. 337; Park, Dow. 40; supra, ch. 12, ? 33.

7 Litt. 44.

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tenancy. The right of survivorship is abolished in many of the States. In others, all estates limited to two or more persons are treated as tenancies in common, unless expressly declared to be joint tenancies by the deed or instrument creating them. An exception is commonly introduced in these statutes in respect of estates to joint trustees, and as to such estates the rule. of the common law is preserved. The different statutory provisions upon this subject will be here noticed.

7. As early as 1783 a statute was passed in Massachusetts abolishing the principle of survivorship among joint tenants, and enacting that on the death of a joint tenant, the joint estate of which he was seised should descend to his heirs.' This statute was repealed and substantially re-enacted by an act passed in 1785, which declared that all estates which had been or should be alienated to two or more persons, should be deemed tenancies in common, unless it appeared to be the manifest intent of the alienor that they should be held as joint estates.2 The statute now in force in that State is as follows:

Sec. 13. All conveyances and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy; unless it is expressed therein that the grantees or devisees shall take the lands jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them.

Sec. 14. The preceding section shall not apply to mortgages, nor to devises or conveyances made in trust, or made to husband and wife, nor to any devise or conveyance in which it manifestly appears, from the tenor of the instrument, that it was intended to create an estate in joint tenancy.

8. Similar enanctments have been adopted in Michigan,* Wisconsin, Indiana, Mississippi,' and Minnesota. In Vermont mortgages are not excepted from the operation of the statute. In other respects the statute of that State conforms to the Massachusetts act. In Rhode Island the right of survivorship

1 Stat. 1783, ch. 52; Holbrook v. Finney, 4 Mass. 566, 568.

2 Stat. 1785, ch. 62; Holbrook v. Finney, 4 Mass. 566, 567.

3 Gen Stat. Mass. (1860,) ch. 89, ?? 13, 14; Mass. Rev. Stat. (1836,) p. 406, ?? 10, 11. [Pub. Stat. 1882, p. 744.] See Appleton v. Boyd, 7 Mass. 131; Goodwin

v. Richardson, 11 Mass. 469; Miller . Miller, 16 Mass. 59; Allen v. Holton, 20 Pick. 458; Putney v. Dresser, 2 Met. 583; Fowler v. Thayer, 4 Cush. 111; Stimpson v. Batterman, 5 Cush. 153; Webster v. Vandeventer, 6 Gray. 428.