ements, &c. to take effect presently in possession, after the decease of her husband, for the life of the wife at the least, if she herself be not the cause of its determination or forfeiture. (1 Inst. 37 a. 1 Cruise's Dig. 213, Greenl. ed.)

In the case of Tinney v. Tinney, (3 Atkins, 8,) a sum of money secured by bond to the intended wife, before the marriage, was held to be a bar to dower. And in a case published by Mr. Cox, where the intended husband gave a bond to the mother of the intended wife, conditioned that he or his heirs would settle £500 a year in land on her, in satisfaction of dower; Sir T. Clarke, M. R. held it a good jointure. From which it appears that the courts of equity now consider any provision which a woman accepts before marriage in satisfaction of dower, to be a good jointure. (1 Cruise's Dig. 216, Greenl. ed.)

The statute being in contradiction to the common law, was always contsrued strictly, and Lord Coke laid it down that the estate limited to the woman would not be deemed a good jointure and a bar to dower, unless it was made to commence and take effect immediately on the death of the husband; that it be for the life of the wife at the least; that it be limited to the wife herself, and not to any other in trust for her; that it be made in satisfaction of the wife's whole dower; that it be expressed or averred to be in satisfaction of her whole dower; and that it be made before marriage. There were other estates limited to a wife which were good jointures within the statute, provided she accepted them after the death of the husband. (1 Cruise's Dig. 215, 217, Greenl. ed.)

The New York statute is an improvement of the statute of uses in pointing out the mode in which the assent of the intended wife is to be manifested, and in providing suitable guards for the protection of infants. It also allows it to be made to another in trust for the intended wife.

The sections already quoted refer to a jointure in an estate in lands. The 11th and 12th sections of the same act declare that any pecuniary provision that shall be made for the benefit of the intended wife and in lieu of dower, shall if assented to by such intended wife, as above provided, be a bar to any right or claim of dower of such wife in all the lands of her husband.

Also, if before her coverture, but without her assent, or if, after her coverture, lands shall be given or assured for the jointure of a

wife, or a pecuniary provision be made for her in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both. (1 R. S. 741, §§ 11, 12.) [See Appendix.]

Our statute on this subject was derived from the 27th Henry 8th, ch. 10, § 6, with some modifications. Under the English statutes there were said to be two kinds of jointures within its provisions. One which prevented the dower from accruing; another, which when accepted but not before, becomes a bar to dower. (1 Cruise, 218, Greenl. ed.)

The question how far a testamentary provisiou in favor of the wife will bar her claim to dower, has often been the subject of judicial exposition. In Bull and wife v. Church, (5 Hill, 206,) the testator, by his will, devised all his property, real and personal, to his wife during her natural life, or as long as she should remain his widow. After her death, or if she should marry again, he gave all his property, real and personal, to his three sons. On the death of the husband the wife took possession and occupied the property for several years and then married the plaintiff. The question was whether her acceptance was a collateral satisfaction of her dower. The court held that it was not. Dower, it was said, is a legal right over which the husband has no direct control. It was admitted that he might offer something else in lieu of it, which if accepted, would be a bar.

The general principle was stated to be that a testamentary provision for the wife is deemed a gratuity or a benevolence, which she may take in addition to her dower, unless the testator has plainly manifested a different intention, as by saying that the gift is in lien or bar of dower. Express words wlll not, however, be necessary, if the claim of dower is so utterly inconsistent with the terms of the will, that the widow cannot have both gift and dower without breaking up the testator's plan of disposing of his estate. In such a case she may be put to her election. This case was affirmed by the court of errors. The chancellor in delivering their judgment said that the right of dower being a legal right, and favored by the courts, cannot be barred by a testamentary provision in her favor, in the nature of a jointure, so as to put her to her election, unless the testator declares the same to be in lieu of dower,

either in express words or by necessary implication. After referring to Fuller v. Yates, (8 Paige, 325,) and Sandford v. Jackson, (10 id. 266,) he stated the settled rule of law to be, that to compel the widow to elect between the dower and a provision made for her in the will, where the testator had not in terms declared his intention on the subject, it was not sufficient that the will rendered it doubtful whether he intended that she should have her dower in addition to that provision; but that to deprive her of dower the terms and provisions of the will must be totally inconsistent with her claim of dower in the property in which it is claimed; so that the intention of the testator in relation to some part of the property devised to others would be defeated if such claim was allowed. (Church v. Bull and wife, 2 Denio, 430.)

The intention of the testator in such cases is to be gathered from the will itself, and not from his oral declarations, or other extrinsic acts.

When the testamentary provision in favor of the widow is not stated to be in lieu of dower, and is not inconsistent with her claim, and is of shorter continuance than her estate of dower and is charged with a burden, indefinite in its nature and extent, no implication can be raised against the validity of her claim. (Lasher v. Lasher, 13 Barb. 106. Leonard v. Steele, 4 id. 20.)

Courts of law as well as courts of equity hold the widow to elect between her dower and a legacy given in lieu of it. (Van Orden v. Van Orden, 10 John. 30. Kennedy v. Mills, 13 Wend. 553.) But to constitute a case for election under the statute, the provision in lieu of dower must be one in which she is to have some beneficial interest. A mere power in trust for the benefit of others is not sufficient, though the interest of the cestui que trust may be made dependent upon her election to take a provision in lieu of dower. (Hawley v. James, 5 Paige, 318.)

The interest of a mortgagee before foreclosure, though the mortgage be in fee, is not such a seisin as to entitle the wife of the mortgagee to dower therein, unless he acquires an absolute estate therein during the marriage. (1 R. S. 741, § 7.)

In cases where the wife is entitled to an election under the 12th and 13th sections of the statute before cited, (1 R. S. 741,) it is declared that she shall be deemed to have elected to take her jointure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for

her dower, or commence proceedings for the recovery or assignment thereof. (Id. § 14.)

With regard to the forfeiture of dower it is enacted that, in case of a divorce, dissolving the marriage contract, for the misconduct of the wife, she shall not be endowed. (1 R. S. 745, § 8.) The statute is indefinite as to the nature of the misconduct that shall work out that consequence. If we construe it with the provision relative to divorces, it probably means the adultery of the wife, established and declared in an action by the husband for a divorce for such adultery. Such a divorce, it has been seen, does not avoid the marriage from the beginning, and therefore, but for this statute, would not impair her claim to dower. (2 R. S. 146, § 48. Wait v. Wait, 4 Comst. 95.) It is perhaps unfortunate that the particular misconduct has not been designated.

In Reynolds v. Reynolds, (24 Wend. 193,) the supreme court decided in 1840, that since the revision of 1830, when a husband dies, his widow is entitled to dower in the lands whereof he was seised, notwithstanding that previous to 1830, for many years she lived in open adultery away from him, if a divorce was not obtained. Had the husband died previous to 1830, she would have been barred under the former act concerning dower, (1 R. L. 58,) passed in 1787, notwithstanding a divorce had not been obtained; but that act having been repealed, the widow, by the revised statutes, is not barred, unless the marriage contract has been dissolved by a divorce. Previous to the death of the husband, the wife had no right, interest or estate in the lands of her husband which could be forfeited by the adultery, and therefore the act of 1787 had no operation in barring her dower.

As to elopement, this was no bar of dower at the common law, though a divorce were sued and obtained for the adultery; but the statute of Westminster, 2d ch. 34, re-enacted in this state in 1787, (1 R. L. 58, § 7,) expressly provides that in such a case the wife shall lose her dower; and though she did not go away voluntarily, but was taken against her will, yet, if after she consented and remained with the adulterer, she lost her dower; for the remaining with him without reconciliation was the bar of dower, and not the manner of going away. (Bacon's Abr. tit. Dower, F. 2 Inst. 435.) The present law places the bar on the ground of adultery on the divorce obtained for that cause.

If the wife forfeits her dower on a conviction for adultery in an action brought by the husband for a divorce, it would seem just that the same consequences should follow with respect to her jointure, or any testamentary provision made in her favor in lieu of dower. It is accordingly enacted that every jointure, devise, and every pecuniary provision in lieu of dower shall be forfeited by the woman for whose benefit it shall be made, in the same cases in which she would forfeit her dower; and upon such forfeiture, any estate so conveyed for jointure, and every pecuniary provision so made, shall immediately vest in the person or his legal representatives, in whom they would have vested on the determination of her interest therein, by the death of such woman. (1 R. S. 742, § 15.)

We have hitherto been considering cases in which the husband was seised of an estate in fee simple absolute. But the wife is entitled to dower where the husband was seised of a defeasible or conditional estate of freehold of inheritance. If land be granted to a man and his heirs until the happening of a future event, the widow is entitled to dower therein on surviving her husband, but her dower will be defeated on the happening of the event upon which the estate is limited. Her dower is likewise liable to be defeated by any claim or incumbrance overreaching his title, and by which his estate might be destroyed.

There is also another class of cases in which courts of equity will uphold the claim to dower, which could not be reached by the strict rules of the common law. It is a maxim of equity that money agreed to be turned into land is to be considered as land. What has been lawfully agreed to be done is, in that court, treated as done. Hence in cases of that nature the widow would be entitled, in a court of equity, to the same interest in the money, that would belong to her in the land, if the conversion of the fund had actually taken place. The widow is now dowable of land which the husband had fully paid for, but of which he had received no conveyance. (Hawley v. James, 5 Paige, 318, 453.) So she is dowable of land for which he had paid, and the deed of which had been taken in the name of another. (Id.; S. C. 16 Wend. 61.)

We have seen by the definition of the estate in dower, that the wife is entitled to be endowed of all the lands whereof the husband was seised of a freehold estate of inheritance at any time during the