3 & 4 Will. 4, c. 105, s. 9. Bequest of personal estate to the widow shall not bar her dower. sect. 9 (Rowland v. Cuthbertson, 8 Eq. 466; Lacey v. Hill, 19 Eq. 346; Re Thomas, Thomas v. Howell, 34 Ch. D. 166). 10. No gift or bequest made by any husband to or for the benefit of his widow of or out of his personal estate, or of or out of any of his land not liable to dower, shall defeat or prejudice her right to dower, unless a contrary intention shall be declared by his will (t). (t) A bequest of personalty never operated in bar of dower unless an intention to that effect clearly appeared (Ayres v. Willis, 1 Ves. sen. 230). Agreement not to bar dower may AGREEMENT NOT to bar DOWER. 11. Provided always, and be it further enacted, that nothing in this act contained shall prevent any court of equity from enforcing any covenant or agreement entered into by or on the part of any husband not to bar the right of his widow to dower out of his lands, or any of them (u). (u) In purchasing an estate free from dower by force of this act, it should be ascertained that the vendor has not bound himself by agreement not to bar his wife's dower (Sugd. V. & P. 548, pl. 24, 11th ed.) Legacies in bar of dower to preference. still entitled PRIORITY OF LEGACIES IN LIEU OF DOWER. 12. Nothing in this act contained shall interfere with any rule of equity, or of any ecclesiastical court, by which legacies bequeathed to widows in satisfaction of dower are entitled to priority over other legacies (~). Preference of (x) When a general legacy is given in consideration of a debt owing to legacies in the legatee, or of his relinquishing any right or interest, it will be entitled lieu of dower. to a preference of payment on the other general legacies (See 1 Rop. on Leg. 372, 2nd ed.; Wms. on Executors, 1265; 1 Fonbl. on Eq. 372). Upon this principle, when a legacy is given to a wife in lieu or satisfaction of dower, she is not, in case the assets should prove deficient, to abate in proportion to the other legatees (Burridge v. Bradyl, 1 P. Wms. 127; Blower v. Morrett, 2 Ves. sen. 420; Davenhill v. Fletcher, Ambl. 244). It seems that the principle of these cases applies only where at the death of the testator the widow is entitled to dower (Heath v. Dendy, 1 Russ. 545; Acey v. Simpson, 5 Beav. 35; Roper v. Roper, 3 Ch. D. 714). A widow, dowable out of her husband's lands, having elected to take an annuity given by his will in lieu of dower, was held to be entitled to priority over the other legacies (Stahlschmidt v. Lett, Sm. & G. 421; see however Re Greenwood, Greenwood v. Greenwood, 1892, 2 Ch. 295). A legacy to a wife in lieu of dower carries interest only for one year from the death (Re Bignold, Bignold v. Bignold, 45 Ch. D. 496). DOWER AD OSTIUM, &C. ABOLISHED. 3 & 4 Will. 4, c. 105, s. 13. 13. No widow shall hereafter be entitled to dower ad ostium Certain ecclesiæ, or dower ex assensu patris (y). (y) An account of this species of dower, which had long become obsolete, will be found in Litt. ss. 38, 39, 40; Co. Litt. 34 a; 2 Bl. Comm. 132, 133. dowers abolished. SAVING AND RESTRAINING CLAUSE. before the 14. This act shall not extend to the dower of any widow who Act not to shall have been or shall be married on or before the first day of take effect January, one thousand eight hundred and thirty-four, and shall 1st January, not give to any will, deed, contract, engagement, or charge 1834. executed, entered into, or created before the said first day of January, one thousand eight hundred and thirty-four, the effect of defeating or prejudicing any right to dower (2). (z) See Fry v. Noble (20 Beav. 598; 7 D. M. & G. 687); and Clarke v. Franklin (4 K. & J. 266). TENANT BY THE CURTESY. Tenant by the curtesy of England is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee simple or fee tail, and has by her issue, born alive, which was capable of inheriting her estate. In this case the husband shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England (Litt. ss. 35, 52; 2 Bl. Comm. 126). And it seems that a husband may become tenant by the curtesy to an estate which his wife has inherited (Williams, Real Prop., App. E. 572, 14th ed.) A husband may be tenant by the curtesy to money which is to be considered as land (Cunningham v. Moody, 1 Ves. sen. 174). A husband is still entitled to curtesy in real estate as to which his wife, married since 1882, has died intestate (Hope v. Hope, 1892, 2 Ch. 336). Four circumstances are requisite for enabling the husband to be tenant Requisites of by the curtesy:-1st. A legal marriage; but if the marriage be voidable a tenancy by only, the husband will be tenant by the curtesy, unless the marriage be the curtesy. actually avoided during the lives of both parties (Hicks v. Harris, Carth. 271; 2 Salk. 548; 4 Mod. 182; see 2 Ves. sen. 245; 7 Rep. 43 b). 2nd. The wife must have a seisin in deed of corporeal hereditaments (Co. Litt. 29 a), either before or after issue born (Id. 30 a). The receipt of rent reserved on a lease for years, amounts to an actual seisin (De Grey v. Richardson, 3 Atk. 469); but the husband cannot acquire such a seisin of an estate let on a lease for life before marriage as will entitle him to be tenant by the curtesy, unless the lease determine during the coverture (Co. Litt. 29 a, 32 a). A husband will not be tenant by the curtesy of an estate tail of which the wife was not seised during the coverture (Co. Litt. 29 a). Therefore, where a wife by an antenuptial settlement conveyed land of which she was tenant in tail to her husband during her life, he took no estate by the curtesy (Doe v. Rivers, 7 T. R. 276). But where a father devised land to a daughter, a married woman, who predeceased him, her husband was held entitled to an estate by the curtesy, by virtue of sect. 33 of the Wills Act (Eagar v. Furnivall, 17 Ch. D. 115). Where Tenant by the a wife's real estate did not fall into possession till after the husband's curtesy. bankruptcy and discharge, it was held that, though there had been issue of the marriage, the husband had not at the time of his bankruptcy any such contingent interest in the estate, as tenant by the curtesy, as would pass to his assignees (Gibbins v. Eyden, 7 Eq. 371). Copyholds. Equitable estates. As to incorporeal hereditaments, a seisin in law is sufficient (Co. Litt. 29 a, and notes by Harg.) Where there is a devise in fee simple, with an executory devise over, the husband's right to curtesy attaches on the first estate, and is not defeated by its determination. As where there was a devise to trustees in fee, in trust for A. and her heirs, with a devise over, in case she died under the age of twenty-one, and without leaving issue. A. had a child which died, and then died under twenty-one; when it was held that her husband was entitled to be tenant by the curtesy (Buckworth v. Thirkel, 10 Moore, 235, n.; 2 Bing. 447; 3 Bos. & P. 652, n.; 4 Dougl. 323; see 2 Sim. 251; 2 Rop. on Husband and Wife, Jac. ed. Addenda, No. 2; Butl. Co. Litt. 241 a, n. (4); Boothby v. Vernon, 9 Mod. 147). But where an estate was devised to A. and her heirs, but if she died, leaving issue, then to such issue and their heirs, and A. died, leaving issue, her husband was not entitled to be tenant by the curtesy, because the estate of the wife had determined on her death leaving issue, by which the children took as purchasers by force of the gift, and not by descent from her (Barker v. Barker, 2 Sim. 249). An estate by the curtesy must arise out of an inheritance, and no such estate can issue out of an estate pur autre vie (Stead v. Platt, 18 Beav. 54). If a husband is possessed of a term of years, and the owner of the reversion in fee devises it to the wife, who has issue, the husband, who in the lifetime of the wife is tenant by the curtesy initiate, holds the two estates in different rights, without having acquired the freehold by his own act, and consequently there is no merger (Jones v. Davies, 7 H. & N. 507; 31 L. J. Ex. 116). As to the effect of the wife's election on the husband's estate by the curtesy, see Griggs v. Gibson (1 Eq. 685). 3rd. The wife must have issue born alive in her lifetime, and capable of inheriting the estate (Co. Litt. 29 b; 8 Rep. 34 b; Dyer, 25 b; see Jones v. Ricketts, 31 L. J. Ch. 753; 10 W. R. 576). 4th. The last circumstance required to consummate the right of the husband is the death of the wife (Co. Litt. 20 a). Copyholds are not subject to curtesy, except by custom (4 Rep. 22 a, 30 b; Paulter v. Cornhill, Cro. Eliz. 361), to which resort must be had for determining what portion of the lands of a feme copyholder a husband will take. It is generally an estate for the life of the husband, if there be issue, as at common law; but in gavelkind lands, a moiety only, so long as he continues unmarried, whether there be issue or not (Co. Litt. 30 a, 111 a; 2 Sid. 153; Rob. on Gav. by Wilson, pp. 177-204; Scriven on Cop. 70, 6th ed.; Shelford on copyholds, pp. 72-74). Equity follows the law in the quality of estates, and therefore a husband will become tenant by the curtesy of an equitable estate of inheritance of the wife, and this notwithstanding a direction to pay the rents to her separate use (Morgan v. Morgan, 5 Madd. 408; Hearle v. Greenbank, 3 Atk. 715; Pitt v. Jackson, 2 Br. C. C. 51; Follett v. Tyrer, 14 Sim. 125). So where there was a devise of freeholds to trustees upon trust to stand possessed thereof unto and to the use of a married woman, her heirs and assigns for ever, for her separate use (Appleton v. Rowley, 8 Eq. 139; contra, Moore v. Webster, 3 Eq. 267). But a disposition by a wife of her separate property, either by deed or will prevents an estate by the curtesy (Cooper v. Macdonald, 7 Ch. Div. 288). Where an equitable estate in fee descended on a married woman, the court, by virtue of her equity to a settlement, settled the estate on her during her life, but held that the possible estate, by the curtesy of her husband, could not be interfered with (Smith v. Matthews, 3 D. F. & J. 139). curtesy. Adverse possession, commenced before the equitable estate of the Tenant by the wife begins, by a party claiming by a title paramount to the trust, who retains possession until after the death of the wife, will prevent any title by the curtesy (Parker v. Carter, 4 Hare, 400). The husband may be excluded in equity by an express declaration, that, upon the death of the wife, the inheritance shall descend to the heir of the wife, and that the husband shall not be tenant by the curtesy (Bennett v. Davis, 2 P. Wms. 316); although a partial exclusion from the enjoyment of the property will not have that effect (5 Madd. 412). By stat. 3 & 4 Will. 4, c. 74, s. 22 (ante, p. 261), an estate by the curtesy qualifies a person to be protector of a settlement. As to the statutory powers of leasing and sale, given to a tenant by the curtesy, see S. E. Act, 1877, sect. 46; S. L. Act, 1882, sect. 58, sub-s. 1 (viii.), post. 3 & 4 Will. 4, c. 106, s. 1. Meaning of words in the act. "Land." LAW OF INHERITANCE. 3 & 4 WILLIAM IV. c. 106. An Act for the Amendment of the Law of Inheritance (a). INTERPRETATION CLAUSE. BE it enacted, that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows (that is to say), the word "land" shall extend to manors, advowsons, messuages, and all other hereditaments, whether corporeal or incorporeal, and whether freehold or copyhold, or of any other tenure, and whether descendible according to the common law, or according to the custom of gavelkind or borough-English, or any other custom, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the same hereditaments and properties or any of them, and to any estate of inheritance or estate for any life or lives, or other estate transmissible to heirs, and to any possibility, right or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles, and interests, or any of them, shall be in possession, reversion, remainder, or contingency; and the words "the purchaser" shall mean the person who last acquired the land otherwise than by descent or than by any escheat, partition, or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent; and the word "descent" shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue; and the expression "descendants" of any ancestor shall extend to all persons who must trace their descent through such ancestor; and the ex"Persons last pression "the person last entitled to land" shall extend to the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits "Assurance." thereof; and the word " assurance" shall mean any deed or instrument (other than a will) by which any land shall be con "The purchaser." "Descent." "Descendants." entitled." |