Where the property (real and personal) was to be divided equally between the wife and two children, a son and a daughter, it was held that the wife must elect, as otherwise there could be no equal distribution of the property if the wife first took out her dower; following Chalmers v. Storrie(a), and Dickson v. Robinson (b). Patrick v. Shaver, 21 Chy. 123, follows the same course.

A wife cannot be endowed of lands given and taken in exchange, but she has her election to take one or the other. McLennan et ux. v. Meggatt, 7 Q. B. 554; White v. Laing, 2 C. P. 186.

Such an action must be pleaded by a party defending in an action for dower. Ibid.

As to form of such a plea. Leech v. Dennis, 24 Q. B. 129. To entitle a woman to damages in dower, it must be alleged and proved that the husband died seised of an estate of inheritance. Jones v. Jones, 2 C. & J. 601; s. c. 2 Tyrw.

531.

Courts of Equity shew great indulgence to a doweress (6 Ves. 89), and will assist a woman by putting out of her way a term which prevents her obtaining possession at law, but that is only as against an heir or volunteer. Lord Dudley and Ward v. Lady Dudley, Preced. Chan. 241; Lady Radner v. Rotherham, Preced. Chan. 65.

Under the Administration of Justice Act, dower might be brought in any Court.

(a) 2 V. & B. 222.

(b) Jac. 503.

9

PART III.

REVISED STATUTES OF ONTARIO.

CAP. 108.

BAR OF ESTATES TAIL BY WANT OF ENTRY.

26. Where the right of a tenant in tail of any land or rent to make an entry or distress, or to bring an action to recover the same, has been barred by reason of the same not having been made or brought within the period limited by this Act, no such entry, distress or action shall be made or brought by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred. C. S. U. C. cap. 88, s. 28.

This section is taken from C. S. U. C. cap. 88, s. 28, which was taken from the 3 & 4 Will. IV. cap. 27 (Imp. Stat.) s. 21.

"It applies to cases where the prescribed period has run out against a tenant in tail during his life; and provides, in effect, that in such a case the right of all persons, whom he might have barred by any act of his own, shall be barred by the effluxion of time against himself.” (a)

"The Statute of Will. IV. gives time practically the same effect in barring the issue in tail, and the remainders over as an assurance to bar under the Fines and Recoveries Act." (b)

The Ontario Statute (Revised Statutes, cap. 100), with regard to estates tail, has generally had the effect of turning all estates tail into estates in fee, as the actual tenants in tail availed themselves of the provisions of that Statute. It was taken from C. S. U. C. cap. 83.

(a) Charley's Real Property Acts, p. 44.

(b) Darby and Bosanquet's Statute of Limitations, p. 310.

Before the passing of the Act respecting the assurance of estates tail, a tenant in tail executed a deed purporting to . convey the property in fee, and gave up possession to the purchaser. Held, that the Statute did not begin to run till the death of the grantor. Re Shaver, 2 Chy. Chambers, 379.-Mowat.

As to this section, vide Darby and Bosanquet's Statute of Limitations, p. 311; also Austin v. Llewellyn, 9 Ex. 276. In Goodall v. Skerratt, 3 Dru. 216, an estate tail was limited to A., remainder in tail to B., remainder to C. A. dies; then B. dies within twenty years, and C. becomes entitled in possession, being then under disability. It was held, that under the 21st and 22nd sections of that Act (3 & 4 Will. IV. cap. 27), time commenced running against C. from the death of A., and that having commenced to run, C. was not saved from its operation under section 16, by being under disability when her right accrued in possession. ViceChancellor Kindersley said, the intention and operation of the 21st and 22nd sections are to put remainder-men, whose estate might be barred by the tenant in tail, in the same position as if they claimed under tenants in tail; that is, the act of the tenant in tail, in allowing any portion of the twenty years to run without making an entry or bringing an action to the extent of the period allowed to elapse, binds the remainder-man.

It has been said by Bramwell, B., that sections 21 & 22 (27 & 28 Rev. Stat.) refer only to estates in remainder and reversion, the estate of the tenant in tail, which descends to his issue, being provided for by sec. 2. Earl of Abergavenny v. Brace, L. R. 7 Ex. 149-173.

Joint tenants in tail executed articles of agreement for the division of the property, and each went into possession, and for thirty-six years continued to enjoy the portion allotted to him, when a bill was filed to enforce the agreement. Held, that the defendant could not set up as a defence to such bill, that the plaintiff had by possession acquired a

perfect title at law. A decree for will be made against a tenant in tail. 6 Chy. 372.

specific performance Graham v. Graham,

27. Where a tenant in tail of any land or rent entitled to recover the same has died before the expiration of the period limited by this Act, no person claiming any estate, interest or right which such tenant in tail might lawfully have barred, shall make an entry or distress or bring an action to recover such land or rent, but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action. C. S. U. C. cap. 88, s. 29.

This section is taken from the 22nd section of the Imp. Act 3 & 4 Will. IV. cap. 27.

"It applies to cases where the prescribed period has begun to run against a tenant in tail in his lifetime. But he has died before the completion of the prescribed period; and in such case, the right of all persons whom he might have barred shall be barred by the effluxion of the time, which would have sufficed to bar himself if he had continued to live." (a)

The twenty years for making an entry did not commence under the Stat. 21 Jac. I., cap. 16, until the right accrued. An estate might have been enjoyed for centuries, under an adverse possession, against a tenant in tail, and afterwards have been recovered by a remainder-man, as, for example, where an estate was limited to one in tail, with remainder to another in fee, and the tenant in tail and his issue were barred by the Statute of Limitations; yet as the remainderman's right of entry did not accrue till the failure of the issue of the tenant in tail, which might not have happened for an immense number of years, the remainder-man might at any time within twenty years after the failure of the issue in tail have entered and recovered the estate in ejectment. Taylor v. Horde, 1 Burr. 60.

(a) Charley's Real Property Acts, p. 44.

The section with regard to a married woman conveying land separate from her husband, formerly part of "An Act respecting the Assurance of Estates Tail," is now sec. 4 cap. 127, Rev. Stat.

The decision Re McElvoy, 32 Q. B. 95, it is submitted, is not now applicable.

Quare: Whether a mortgage in the short form under 27 & 28 Vic. cap. 31, executed by the tenant in tail, has the effect of barring the entail. Re Dolson, 4 Chy. Chambers, 36.-Taylor, Referee.

See as to estate tail Dumble v. Johnson et al., 17 C. P. 9.

28. Where a tenant in tail of any land or rent has made an assurance thereof, which does not operate to bar the estate or estates to take effect after or in defeasance of his estate tail, and any person is by virtue of such assurance, at the time of the execution thereof, or at any time afterwards, in possession or receipt of the profits of such land, or in the receipt of such rent, and the same person or any other person whosoever (other than some person entitled to such possession or receipt in respect of an estate which has taken effect after or in defeasance of the estate tail) continues or is in such possession or receipt for the period of ten years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of ten years, such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right to take effect after or in defeasance of such estate tail. 38 Vic. cap. 16, s. 7.

This section is taken from the 23rd section of 3 & 4 Will. IV. cap. 27.

The effect of the present enactment, 38 Vic. cap. 16, s. 7, is to shorten the time from twenty years to ten years. Mr. Banning, in his able work, thus speaks of the effect of the 21st and 22nd sections of 3 & 4 Will. IV. (secs. 26 & 27 of this Act): "The joint effect of the two sections, there