3 & 4 Will. 4, c. 105, s. 2.

Mortgages.

Reversions and remainders.

pursued to the utmost, would have affected the titles to a large proportion of the estates in the country, as parties had been acting on the footing of dower upon a contrary principle, and had supposed that by the creation of a trust, the right of dower would be prevented from attaching. Many persons had purchased under this idea; and the country would have been thrown into the utmost confusion, if courts of equity had followed their general rule with respect to trusts in the cases of dower. But the same objection did not apply to a tenancy by the curtesy, for no person would purchase an estate subject to such right, without the concurrence of the person in whom it was vested. (D'Arcy v. Blake, 2 Sch. & Lef. 388.) Before the Dower Act a widow was not entitled to freebench of a trust estate in copyholds. (Forder v. Wade, 4 Br. C. C. 520.) And the act, which does not apply to copyholds, has made no difference in this respect. (Smith v. Adams, 5 De G., M. & G. 712.)

Where an estate was subject to a mortgage in fee at the time of the marriage, and continued so during the coverture, the widow was not entitled to dower, as at law the whole legal inheritance was vested in the mortgagee; and the right of redemption was merely an equitable title, insufficient to create a claim of dower. (Dixon v. Saville, 1 Br. C. C. 326.) A party died in 1830, having vested in him a mortgage in fee, and the lapse of time and circumstances were such as to render it very improbable that any party could now establish any right to the equity of redemption: it was held, nevertheless, that the widow was not entitled to dower. Though the husband might have considered the property as his own at his death, and though the court might not then consider it subject to any redemption, yet the quality of the estate in the consideration of the court was not such as to give a right of dower. (Flack v. Longmate, 8 Beav. 420.) Where the husband was seised merely as a mortgagee or trustee, the wife was entitled to dower at law, but subject in equity to the same right of redemption or trust as her husband was liable to; but a court of equity would interfere to prevent a widow from taking advantage of her legal right. (Hinton v. Hinton, 2 Ves. sen. 634; see 2 Freem. 43, 71; 1 Burr. 117; Butl. Co. Litt. 205 a, n. (1), 11th ed.; Lyster v. Mahony, 1 Dru. & War. 242.) The legal estate in certain freeholds was vested in K. as mortgagee in fee, subject to the equity of redemption of F.; K. also claimed to be entitled to an undivided moiety in these freeholds, which claim was disputed by F., but was established by a decree at the Rolls: after K.'s death it was held, that the legal and equitable interest had not been so united in K. as to entitle his widow to dower out of his undivided moiety. (Knight v. Frampton, 10 Law J., N. S., Chanc. 247; 4 Beav. 10.)

So a woman is not entitled to dower of estates of which the husband was seised in fee, subject at the time of his marriage to leases for lives, which did not expire during the coverture. (D'Arcy v. Blake, 2 Sch. & Lef. 387; Fitz. Abr. Dower, pl. 184; Br. Abr. Dower, pl. 44; Co. Litt. 32 a; Co. Litt. 203 a, Harg. note; Perk. 333, 348; Forder v. Wade, 4 Br. C. C. 520.) If a man before marriage entered into a contract for the sale of his fee simple estate, his subsequent marriage would not under the old law create any right of dower; the husband being a trustee for the purchaser, the court would not allow the wife to assert her right of dower. It was the same in the case of a contract made after marriage, but before the legal estate was vested in the husband. So if the husband conveyed a legal estate in remainder, not subject to dower at the time of the conveyance, dower would not afterwards attach on that estate in favour of the wife, merely because, if he had not conveyed the estate, it would have fallen into possession, and become liable to dower. (Lloyd v. Lloyd, 4 Dru. & War. 370.) On the surrender in deed or in law of the life estate to the husband the right of dower will attach. (1 Roll. Abr. 676, pl. 40.) But if a rent be reserved on a lease for years, made before marriage, the wife will be entitled to recover dower of the third part of the rent immediately, and also of the land, with a cesset executio during the term. (Prec. Ch. 250.) And the wife of a man entitled to lands under a devise to him in fee or in tail, subject to a chattel interest for raising the testator's debts, is dowable after payment of them. (Co. Litt. 41 a; 8 Rep. 96 a; 2 Vern. 404.) A husband was seised in fee subject to a trust

term to secure life annuities and to pay himself half the surplus rents. It was held, that his widow was entitled to have her dower set out at once. (Sheaf v. Cave, 24 Beav. 259.)

3 & 4 Will. 4,

c. 105, s. 2.

Where a husband was entitled to an equitable estate in fee simple in certain land determinable in the event which took place, of his dying without leaving issue living at his decease: it was held, that, notwithstanding the operation of the executory devise over, his widow was under this section entitled to dower out of the land. (Smith v. Spencer, 4 W. R. 729.) (n) See Fry v. Noble, 24 Law J., Ch. 591. The widow of a joint tenant Joint tenants. in fee or in tail is not entitled to dower, because, upon the death of one of the joint tenants, the estate goes to the survivor, who is then in from the first grantor, and may plead the deed creating the estate as originally made to him, without naming his companion. (Litt. s. 45; Co. Litt. 37 b, 30 a, 183 a.) And if a joint tenant aliens his share, his wife shall not be endowed. (Fitz. N. B. 150; Br. Dow. pl. 30; Cro. Jac. 615.)

A widow concurred in a partition of her husband's estate, and released a moiety allotted to the other tenant in common from her dower; the other moiety was conveyed to the trustees of her husband's will: it was held, that she was entitled to dower out of the entirety of the latter moiety. (Reynard v. Spence, 4 Beav. 103.)

SEISIN OF HUSBAND.

title to dower.

3. When a husband shall have been entitled to a right of Seisin shall not be entry or action in any land, and his widow would be entitled to necessary to give dower out of the same, if he had recovered possession thereof, she shall be entitled to dower out of the same, although her husband shall not have recovered possession thereof; provided that such dower be sued for or obtained within the period during which such right of entry or action might be enforced (o).

(0) A right of entry is where a man, who has the possession of lands, is Right of entry. disscised or ousted, or, having a right to the possession, is kept out of it; in which case he may peaceably make an entry upon the lands, or bring an action of ejectment to recover the possession. (See Rosc. on Real Actions, 79, &c.; 1 Real Prop. Rep. 493.) We have already seen (ante, p. 228), that no descent cast or discontinuance made after the 31st December, 1833, is to bar a right of entry, and that continual claim will not preserve it. (Ante, p. 180.) The time within which a right of entry must be prosecuted is now prescribed by statute 3 & 4 Will. 4, c. 27. (See ante, p. 144 et seq.)

Seisin is a technical term, to denote the completion of that investiture by Seisin. which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. (1 Burr. 107.) One of the circumstances required to give a title of dower before this act was, that the husband should be seised during the coverture of the estate whereof the wife is to be endowed. A seisin in law was sufficient, without a seisin in deed.

A seisin in law, in its usual acceptation, is where the inheritance in lands and hereditaments, of which a man died seised or possessed, descends upon his heir, who dies before entry or possession. (Litt. s 448.) In such a case, if the heir leave a widow, she will be entitled to dower. (Litt. s. 681.)

On conveyances under the Statute of Uses, the bargainee or cestui que use is seised in law immediately on the delivery of the deed, and therefore his wife was dowable, although no entry had been made by him, or other act done to acquire an actual seisin. As if lands were bargained and sold, and a stranger entered, and then the deed was inrolled and the bargainee died, his wife would be endowed; (2 And. 161; Gilb. Uses, by Sugd. 213; see Cro. Jac. 604;) but if the husband had died before inrolment, she would not have been endowed. (Gilb. Uses, 213.)

But wherever an actual entry was necessary to give effect to a convey

3 & 4 Will. 4, c. 105, s. 3.

ance, as in the case of an exchange at common law, the wife was not entitled to dower, unless the husband had entered. (Perk. s. 368; Park on Dower, 34.)

ALIENATION, &C. BY HUSBAND.

No dower out of

4. No widow shall be entitled to dower out of any land which estate disposed of, shall have been absolutely disposed of by her husband in his lifetime, or by his will.

Priority to partial

estates, charges and specialty debts.

By old law the husband alone could not defeat dower.

Old rule that a devise of lands liable to dower was primâ facie a devise of them subject to the

5. All partial estates and interests, and all charges created by any disposition or will of a husband, and all debts, incumbrances, contracts and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower (p).

(p) Before this act, after a title of dower had once attached, it was not in the power of the husband alone to defeat it by any act in the nature of alienation or charge. (3 Lev. 386; Co. Litt. 32.) It was a right attaching by implication of law, which, although it might never take effect (as if the wife died in the husband's lifetime), yet from the moment that the facts of marriage and seisin had concurred, was so fixed, as to become a title paramount to that of any person claiming under the husband by subsequent act. (Co. Litt. 32 a; F. N. B. 147 (E).) The alienation of the husband, therefore, whether voluntarily, as by deed or will, or involuntarily, as by bankruptcy, &c., would not defeat the wife's right of dower against the husband's alience, against whom dower might be recovered in the same way as against the heir of the husband dying seised. The consequence of the above rule was, that all charges or derivative interests created by the husband after the title of dower had attached were voidable as to that part of the land which was recovered in dower. (Shep. T. 275; Stoughton v. Leigh, 1 Taunt. 410; Co. Litt. 46 a; 7 Rep. 8, 72; Jenk. Cent. p. 36: see Park on Dower, 237, 238.)

Where a benefit was given by the will to the testator's widow, a question was often raised whether she was not thereby precluded from claiming dower out of lands devised by that will. The rule was that a devise of lands liable to dower was prima facie a devise of them subject to the right to dower; and a widow was accordingly entitled to claim both her dower and the benefit given by the will. (Birmingham v. Kirwan, 2 Sch. & Lef. Widow put to her 444; Ellis v. Lewis, 3 Hare, 313; Gibson v. Gibson, 1 Drew. 42.) But certain provisions were considered as inconsistent with the right to dower, and where a will contained such provisions, the widow was put to her election.

right to dower.

election where

will contained provisions inconsistent with right

to dower.

Gift of personal use of part of property.

Power to lease and powers of management.

Thus, where a testator provided that his daughter should have the personal use, occupation and enjoyment of a house, it was held that the testator intended that the devisees of the estate (of which the house formed a part) should take the whole estate free from dower, and the widow was put to her election. (Miall v. Brain, 4 Mad. 119. See Butcher v. Kemp, 5 Mad. 61; Roadley v. Dixon, 3 Russ. 192.)

A testator bequeathed to his wife an annuity, payable out of part of his real estate, and he devised other real estate to trustees upon trust, on the youngest of his nephews and nieces coming of age, to sell and to divide the proceeds among them; the testator gave to the trustees an express power to lease, and also the general power to manage and to cut timber for the purpose of repairs at their discretion: it was held, that the widow was bound to elect between the annuity and her dower, and that, in order to raise a case of election against the widow, it must be shown from the will that the husband intended to dispose of the property subject to dower in a manner inconsistent with the right to dower, and that the power to lease, given to the trustees, was a sufficient evidence of such intention; further, that the powers to manage and to cut timber were inconsistent with the

right to dower. (Parker v. Sowerby, 4 De G., M. & G. 321; 18 Jur. 523; 3 & 4 Will. 4, 23 Law J., Ch. 623; overruling Warbutton v. Warbutton, 2 Sm. & G. 163; see Linley v. Taylor, 1 Giff. 67.)

Powers of, or trusts for sale created by will over real estate are not (as leasing powers have been held) inconsistent with a widow's right to dower. Nor is her claim affected by any direction as to the distribution of the proceeds. There is no such rule as that where a testator's widow is entitled under his will to what would exceed her dower; she is thereby put to her election. Where a testator, by his will, directed his trustees to sell all his freehold and copy hold estates wheresoever situate, and gave his widow half of the proceeds, and also half of all his personal property (except articles specifically bequeathed to her): it was held, that she was not bound to elect between her dower and the benefits given her by the will. (Bending v. Bending, 3 K. & J. 57; 3 Jur., N. S. 535; 26 L. J., Ch. 469.) See further 1 Jarm. Wills, 431 et seq.; Hawk. Wills, 275; 1 L. C., Eq. 323 et seq.

C. 105, 8. 5.

Powers of or trusts for sale.

By the above sections all dispositions by the husband are made effectual New law. as against the right of his widow to dower. Where a testator, after directing his debts to be paid by his executors, devised his real and personal estate, subject as aforesaid, to trustees upon certain trusts, being partly for the benefit of the widow, it was doubted by Lord Romilly, M. R., whether she was deprived of her right to dower by sect. 4. (Rowland v. Cuthbertson, L. R., 8 Eq. 466.)

Notwithstanding the statute 3 & 4 Will. 4, c. 104 (see post), and the fifth section of this act, the widow's right to dower or freebench has still priority over mere creditors of a deceased husband. (Spyer v. Hyatt, 20 Beav. 621.)

A widow has no right against the heir at law of her deceased husband to be indemnified in respect of a mortgage created by the husband. Therefore where, in a case of that description, the mortgaged property had been sold by order of the court in a suit for administration of an intestate's estate: it was held, as between his widow and his heir, that the right of the widow to dower was limited to one-third of the income of the clear surplus of the proceeds of the sale, after deducting what was due upon the mortgage. (Jones v. Jones, 4 K. & J. 361.)

The Dower Act does not apply to freebench. (Smith v. Adams, 5 De G., Freebench. M. & G. 712.) Freebench, in the absence of any custom to the contrary, does not attach even in right until the husband's death (Carth. 275; 12 Mod. 49; 3 Lev. 385; 2 Ves. sen. 633; 2 Atk. 526; 2 T. R. 580; 3 Ves. jun. 256); and therefore any alienation by him alone, even by contract (2 Ves. sen. 621), to take effect in his lifetime, will defeat the widow's claim. (Benson v. Scott, 3 Lev. 385; Goodwin v. Windmore, 2 Atk. 526; Farley's case, Cro. Jac. 36; Moor. 758; Dagworth v. Radford, Sir W. Jones, 462; 1 Freem. 516; Gilb. Ten. 321; see 2 Watk. on Cop. 73–79. See Shelford on Copyholds, pp. 68-72.)

Copyhold land purchased by the husband was surrendered to the use of him and his assigns for life, and after his decease to the use of such person, for such estate and upon such trust as he by any surrender or by will should surrender or devise, and in default of such surrender or devise and so far as the same if incomplete should not extend, to the use of the husband, his heirs and assigns for ever, at the will of the lord, &c. The husband was admitted in fee, and by will devised the land to a trustee on trust for sale. By the custom of the manor the title of the wife could only be destroyed by her voluntary surrender: it was held, that she was entitled to her freebench. (Pondrell v. Jones, 2 Sm. & G. 407; 18 Jur. 1111; 24 L. J., Ch. 123.)

The purchaser of a copyhold held of a manor, the custom of which entitled widows of the copyholders to freebench in one moiety of the lands of which their husbands died seised, took a surrender, but died before admittance: held, that his widow was not entitled to freebench at law or in equity. (Smith v. Adams, 5 De G., M. & G. 712.) A widow was held not entitled to freebench out of a moiety of copyholds to which her husband was entitled in remainder after a life estate. (Smith v. Adams, 18 Beav.

3 & 4 Will. 4, c. 105, s. 5.

Dower may be barred by a declaration in a deed;

or by a declaration in the husband's will.

Dower shall be subject to restrictions.

Devise of real estate to the widow shall bar her dower.

By the custom of the manor of Cheltenham, as settled by statute 1 Car. 1, the widow of a copyholder is entitled to dower out of customary lands of which her husband was tenant during the coverture, although such lands had been aliened during the coverture by the husband alone, without the wife having been examined in court or joined in the surrender. (Riddell v. Jenner, 10 Bing. 29; 3 M. & Scott, 673.) Where lands held of that manor, between the time of alienation by the husband and of his death, have been improved in value by buildings, the widow is entitled to dower, according to the value at the time of his death, although one-third remain not built upon. And if the lands so aliened are, at the death of the husband, in the possession of several persons, whether by the immediate act of the husband or the act of his alience, dower must be assigned as to onethird of the lands of each such possessor. Doe d. Riddell v. Gwinnell, 1 Gale & D. 180; 1 Q. B. 682.)

The widow of a tenant in tail of copyhold is entitled to freebench, though there is no custom as to the freebench of widows of tenants in tail, but only as to the freebench of widows of tenants in fee. (Doe d. Duke of Norfolk v. Sanders, 3 Dougl. 303.)

A marriage settlement, "in order to make some provision for" the intended wife in case she should survive her husband, settled some of the husband's copyholds, after his death, on her for life: held, that she was not thereby barred of her freebench in other copyholds, as to which the husband died intestate. (Willis v. Willis, 34 Beav. 340.)

See further Scriven on Copyholds, 56 et seq., 5th ed.

By the custom of gavelkind, the wife, after the death of her husband, shall have for her dower a moiety of all lands of her husband so long as she continues chaste. (Rob. on Gav. by Wilson, pp. 205-236.)

6. A widow shall not be entitled to dower out of any land of her husband, when in the deed by which such land was conveyed to him, or by any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land (g)..

(7) In order to prevent a widow from having dower out of lands purchased by her husband, a declaration contained in the deed of conveyance that she shall not be dowable is sufficient under this section, although the deed was not executed by the husband. (Fairley v. Tuck, 27 L. J., Ch. 28; 6 W. R. 9.)

A conveyance of real estate, prior to this act, made to a married man to the usual uses to bar dower, with a declaration that it was to the intent "that the present or any future wife should not be entitled to dower," will not, as against the heir at law, deprive a second wife, married after the passing of this act, of her dower. (Fry v. Noble, 20 Beav. 598; 7 De G., M. & G. 687; Clarke v. Franklin, 4 Kay & J. 266.)

7. A widow shall not be entitled to dower out of any land of which her husband shall die wholly or partially intestate, when by the will of her husband duly executed for the devise of freehold estates, he shall declare his intention that she shall not be entitled to dower out of such land, or out of any of his land. 8. A right of a widow to dower shall be subject to any conditions, restrictions, or directions which shall be declared by the will of her husband duly executed as aforesaid.

9. Where a husband shall devise any land out of which his widow would be entitled to dower if the same were not so devised, or any estate or interest therein, to or for the benefit of his widow, such widow shall not be entitled to dower out of or