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immaterial, provided it was during the coverture; for whether it was before or after the wife's seisin of the lands, whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy.
4. Death of the Wife. The husband, by the birth of the child, becomes tenant by the curtesy initiate, and may do many acts to charge the land, but his estate is not consummate till the death of the wife. IV. TENANT IN DOWER.
Defined. This is where the husband of a woman is seised of an estate of inheritance and dies; in which case the widow shall have one-third part of all the lands and tenements, whereof he was seised at any time during the coverture, to hold during the term of her natural life.
History of Dower Dower, doarium or dos among the Romans, signified the marriage portion, which the wife brought to her husband, but with us, signifies that kind of property, to which the civil law, in its original state, had nothing that bore any resemblance. Dower out of the lands was unknown apparently in the early part of our Saxon constitution, for in the laws of king Edmond, the wife is directed to be supported wholly out of the personal estate. Afterwards, as in gavelkind tenure, the wife became entitled to a conditional estate in one-half of the lands, with a proviso that she remained chaste and unmarried, as is usual also in copyhold dower or free bench. Some ascribe its introduction to the Normans, others to the Danes under Sweyn, the father of Cannte.
Dower Estate. In treating of this estate, let us consider:
1. Who may be endowed. 2. Of what endowed.
4. How dower is barred. 1. Who may be Endowed. She must be the actual wife of the party, at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed, for ubi nullum matrimonium, ibi nulla dos. But a divorce a mensa et thoro only, does not destroy the dower. Where a woman elopes from her husband, and lives with a paramour, she shall lose her
i Free bench is a widow's estate in such lands as her husband died seised of, whereas dower is her estate in lands of which the husband was seised during the coverture.
dower, unless her husband condones her offence. The wife of an idiot is not entitled to dower, because an idiot cannot marry, being incapable of assenting to any contract. By the ancient law, the wife of a person attainted of treason or felony could not be endowed, and at the present date, widows of traitors are barred of dower, except in cases of certain modern treasons relating to the coin, but not the widows of felons. An alien cannot be endowed, unless she be qneen consort, for no alien is capable of holding lands. The wife must be above nine years of age at her husband's death, otherwise she shall not be endowed.
1. Of what a Wife may be Endowed. She may be endowed of all lands and tenements, of which her husband was seised in fee-simple or fee-tail, at any time during the coverture, and of which any issue, which she might have had, could by possibility have been heir. Therefore, if a man, seised in feesimple, has a son by his first wife, and on her death marries again, the second wife shall be endowed of his lands, for her issue might by possibility have been heir, on the death of the son by the former wife. This principle does not hold, where a man holds as donee in special tail, with heirs of his body begotten on his first wife.
Seisin in Law and in Deed. A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable; for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands, which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually seised in deed.
Transitory Seisin. The seisin of the husband for a transitory instant only, when the same act which conveys him the property conveys it from him again, will not entitle the wife to dower, for the lands were merely in transitu, and never rested in the husband. But if the land abide in him for the interval of but a single moment, it seems that the wife shall be endowed thereof.?
Copyhold Estates. Alienation. Copyhold estates are not liable to dower, being only estates at the lord's will, unless by the special custom of the manor. But where dower is allowable, it matters not, though the husband aliene the lands during the coverture, for he alienes them subject to dower.
1 She may be, if she has been naturalized, or if she married under a license obtained from the king.
2 This means, that he holds it as his own, and not in a fiduciary capacity.
3. The Manner in which a Woman may be Endowed.
Kinds of Dower. There are four subsisting species of dower, a fifth one, de la plus belle, having been abolished with military tenures:
(1.) Dower by the common law, as herein described.
(2.) Dower by particular custom, as that a wife should have one-half or the whole of her husband's lands.
(3.) Dower ad ostium ecclesiae, which is where the tenant in fee-simple of full age, openly at the door of the church, where all marriages were formerly celebrated, after affiance made and troth plighted, endows his wife with all or a portion of his lands, specifying the same, on which the wife, after his death, may enter without further ceremony.
(4.) Dower ex assensu patris, which is only a species of dower ad ostium ecclesiae, made when the husband's father is alive, and the son, with his express consent, endows his wife with part of his father's lands.
History of Dower in England. The doctrine of dower has undergone many changes since its first introduction into England. It first was of the nature of dower in gavelkind, a moiety of the husband's lands, but forfeitable by incontinency or a second marriage. Under Henry I, this forfeiture occurred only where the husband left issue, and subsequently it ceased to be enforced in any case. Under Henry II, the dower ad ostium ecclesiae was the usual species of dower, and was binding on the wife, if she consented at the time of marriage. It gave her no more endowment than with one-third part of the lands, and it might be less, lest by too liberal endowment, the lord should be defrauded of his wardships and other feudal profits. If no specific dotation was made at the church porch, she was endowed by the common law of the third part of such lands and tenements, as the husband was seised of at the time of the espousals and no other, unless he specially promised to endow her with future acquisitions. If he had no lands, an endowment in goods, chattels or money at the time of espousals was a bar to any lands subsequently acquired. The dower ad ostium ecclesiae and ex assensu patris are now obsolete.
Under the Feudal System. The method of endowment or assigning dower by the common law is now the only usual species. By the old law, founded on feudal exactions, a woman could not be endowed without a fine paid to the lord, neither could she marry again without his license, lest she should contract herself, and so convey part of the feud, to the lord's enemy. This license, the lord managed to be well paid for, and sometimes would compel a second marriage, in order to obtain the fine. But by magna carta, the widow need pay nothing for her marriage, nor be compelled to wed, but however could not marry without the consent of her lord.
Widow's Quarantine. Further, that nothing shall be taken for assignment of the widow's dower, but she shall remain in her husband's mansion house for forty days after his death, during which time her dower shall be assigned. These forty days are called the widow's quarantine, which word signifies this number of days, whether in this or any other connection.
Assigned by the Heir or his Guardian. The particular lands to be held in dower, must be assigned by the heir of the husband, or his guardian, so as to entitle the lord of the fee to demand the services of the heir in respect to such lands. For the heir by this entry becomes tenant thereof to the lord, and the widow is immediate tenant to the heir by a kind of subinfeudation, completed by this investiture or assignment, which tenure may still be created, notwithstanding the statute of quia emptores, because the heir parts not with the fee-simple, but only with an estate for life.
Admeasurement of Dower. If the heir or his guardian do not assign the dower during quarantine, or assign it unfairly, the widow has her remedy at law, and the sheriff is appointed to assign it. Or if the heir, while under age, or his guardian assign more than she ought to have, it may afterwards be remedied by a writ of admeasurement of dower. If the thing of which she is endowed be divisible, her dower must be set out by metes and bounds, but if it be indivisible, she must be endowed specially.
Jointures Introduced. Upon pre-arranged marriages, and in estates of considerable consequence, tenancy in dower happens very seldom, for the claim of a wife to dower became a great clog to alienations. Wherefore, since the disuse of dower ad ustium ecclesiae, jointures have been introduced in their stead, as a bar to the claim at common law.
4. How Dower may be Barred or Prevented. A widow may be barred of her dower by elopement, divorce, being an alien, by the treason of her husband, and other disabilities above mentioned. Also by detaining the title deeds or evidences of the estate from the heir, until she restores them. If a dowager alienes the land assigned her for dower, she forfeits it ipso facto, and the heir
may recover it by action. A woman may also be barred of her dower, by levying a fine or suffering a recovery of the lands, during her coverture. But the most usual method of barring dowers is by jointures, as regulated by the statute of Henry VIII, termed the statute of uses.
Jointures. A jointure signifies a joint estate, limited to both husband and wife, but in common parlance extends also to a sole estate, limited to the wife only. Coke defines it, as “a competent livelihood of freehold for the wife, of lands and tenements, to take effect in profit or possession, presently after the death of the husband, for the life of the wife at least." This description is framed from the purview of the statute of uses.
Before the Statute of Uses. Before the making of that statute, the greater part of the land of England was conveyed to uses, the property or possession of the soil being vested in one man, and the use, or the profits thereof, in another, whose directions with regard to the disposition thereof, the former might be compelled by a court of equity to observe and follow. Now, though the husband had the use of lands in absolute fee-simple, yet the wife was not entitled to dower therein, he not being seised thereof, wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives, in joint tenancy, or jointure, which settlement would be a provision for the wife, in case she survived her husband.
Effect of the Statute of Uses. The statute of uses ordained, that such as had the use of lands should to all intents be reputed and taken to be absolutely seised and possessed of the soil itself. As a result of such legal seisin, wives would have become dowable of such lands as were held to the use of their husbands, and also to special estates, as had been settled upon them in jointure; had not the same statute provided, that upon making such an estate in jointure to the wife before marriage, she shall be forever precluded from dower.