The old law of dower gave to a surviving wife a right to have assigned 3 & 4 Will. 4, to her for her life one-third of all the lands and hereditaments of which c. 105, s. 1.

dower.

her husband was solely seised in law (that is, had the legal property by Old law of
descent, there being at the same time no possession), or, in fact, for an
estate of inheritance in possession at any time during the marriage; with
a few exceptions such as common sans nombre and personal annuities (see
the statement of the old law of dower in the first Report of the R. P.
Commrs. 16--19; Co. Litt. 32a; Lyster v. Mahony, 1 Dru. & War. 236).
The widow of a man to whom an estate was devised in fee, with a Out of what
limitation over to the testator's heir, in case the devisee had no children property a
or issue, was held to be entitled to dower (Moody v. King, 2 Bing. 447; woman is
Smith v. Spencer, 4 W. R. 729). She was not entitled to dower out of an
entitled to
estate pur autre vie (Low v. Burron, 3 P. W. 262; Re Michell, Moore v.
dower.
Moore, 1892, 2 Ch. 99). Where, however, land was limited to the hus- Mines.
band pur autre vie, with certain contingent estates in remainder over,
with ultimate remainder to him in fee, the land was held liable to dower
(Lemon v. Mark, 1899, 1 I. R. 416; see Re Michell, sup.) Dower is due of
mines wrought during coverture, but not of mines or strata unopened. If
lands assigned for dower contain an open mine, tenant in dower may work
it for her own benefit (Stoughton v. Leigh, 1 Taunt. 401; Dickin v. Hamer,
1 Dr. & Sm. 284). And a dowress may claim one-third of the income of Timber.
the proceeds arising from the royalties of mines opened after her husband's
decease (Dickin v. Hamer, sup.), or of proceeds of timber cut after her
husband's decease (Bishop v. Bishop, 5 Jur. 931; Dickin v. Hamer, sup.)
Where land subject to dower was taken by a railway company, the dowress
had the value of her dower paid to her out of the purchase-money (Re Hall,
9 Eq. 179). In another case one-third of the purchase-money was carried
over to a separate account, the dividends being payable to the dowress
for life (Harrop v. Wilson, 34 Beav. 166). See, further, as to the property
out of which a woman is entitled to dower, and the requisites to dower,
the note to sect. 2, post; Tudor's L. C. Conv. 112 et seq., 4th ed.

In consequence of two maxims of the common law first, that no right Barring
can be barred until it accrues; and, secondly, that no right or title to an dower.
estate of freehold can be barred by a collateral satisfaction-it was im-
possible to bar a woman of her dower by any assignment or assurance of
lands, either before or during the marriage (Vernon's case, 4 Rep. 1; Co.
Litt. 36 b).

Dower, however, might be barred by a legal jointure. Before the Legal passing of the Statute of Uses (27 Hen. 8, c. 10), the greater part of the jointures. lands in England having been conveyed to uses which were not liable to dower (Dyer, 266, pl. 7; 4 Rep. 1 b), it was usual to make a provision for the wife before marriage out of the husband's lands (3 Rep. 58 b; 4 Rep. 1b; Wilmot's Notes, 184, 185). The Statute of Uses having transferred the legal estate to the cestui que use, all women then married would have become dowable of lands held to the use of their husbands, and retained their title to lands settled on them in jointure. To prevent that injustice, it is by the 6th section of the Statute of Uses declared, that a woman having an estate in jointure with her husband (five species of which are enumerated) shall not be entitled to dower; and the 9th section reserves to the wife a right to refuse a jointure or to claim her dower (see Wilmot's Notes, 184, &c.). It was decided that the species of estates enumerated are proposed only as examples, and the courts have in construction extended the operation of the statute to other instances within its principle, though not within its words (4 Rep. 2 a). By the effect of that statute, therefore, no widow can claim both jointure and dower. A jointure within that statute is defined to be a competent livelihood of freehold to 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, if she herself be not the cause of its determination or forfeiture (Co. Litt. 36 b, 37).

According to Lord Coke (Co. Litt. 36 b), there are six requisites to a strict legal jointure, viz., 1st. The provision for the wife must by original

1

3 & 4 Will. 4, c. 105, s. 1.

Equitable jointures.

limitation take effect in possession or profit immediately after the husband's
death (Wood v. Shirly, Cro. Jac. 488; see Re De Hoghton, De H. v. De H.,
1896, 2 Ch. 385). 2nd. It must be for the term of her own life or greater
estate (Dyer, 97 b). 3rd. It must be made to herself, and no other for
her. 4th. It must be made in satisfaction of the whole, and not of part,
of her dower. 5th. It must be either expressed or averred to be in satis-
faction of her dower (see 9 Mod. 152; 3 Atk. 8; 1 Ves. sen. 54; 4 Ves.
391). And 6th. It may be made either before or after marriage (4
Rep. 3).

Jointure before marriage is a peremptory bar of dower; jointure after
marriage she has an option to renounce (1 Swanst. 429, n.); but a jeme
covert was held not competent during the coverture to elect between a
jointure made to her after marriage and her dower at common law (Frank
v. Frank, 3 M. & C. 171).

A jointure settled on a wife by articles, to which she was not a party, will not deprive her of dower (Buckingham v. Drury, 3 Br. P. C. 497; Daly v. Lynch, Ib. 48); but an infant having before her marriage a jointure made to her in bar of dower, is thereby bound and barred by the stat. 27 Hen. 8, c. 10 (b.)

In equity, a trust estate, an agreement to settle lands as a jointure, or a covenant from the husband that his heirs, executors or administrators would pay an annuity to his wife, for her life, in case she survived him, in full for her jointure and in bar of dower, without expressing that it should be charged on lands, or, in short, any provision, however precarious, and whether secured out of realty or personalty, which an adult before marriage accepts in lieu of dower, is a good jointure (Buckingham v. Drury, 5 Br. P. C. 570; 4 Br. C. C. 506; Wilmot's Notes, 177; Charles v. Andrews, 9 Mod. 152; Williams v. Chitty, 3 Ves. jun. 545; Tinney v. Tinney, 3 Atk. 8; Carruthers v. Carruthers, 4 Br. C. C. 500; Estcourt v. Estcourt, 1 Cox, 20; Simpson v. Gutteridge, 1 Madd. R. 613; 4 Rep. 2 a, n. by Thomas; Harg. Co. Litt. 36 b, n. (5); Sugd. V. & P. 543, 544, 11th ed.; Dyke v. Rendall, 2 D. M. & G. 209). A future contingent provision, accepted by an adult female upon her marriage in lieu of dower, is in equity a valid bar to dower (Re Herons, 1 Flan. & K. 330; see Power v. Sheil, 1 Moll. 312; Williams v. Chitty, 3 Ves. 545; Corbet v. Corlet, 1 Sim. & St. 612; 5 Russ. 254).

A wife had a jointure secured on her husband's estate X. In 1844, the husband contracted to purchase an estate Y., and to enable him to sell the estate X., the wife, in 1845, released her jointure, and he then covenanted to secure it out of estates he should thereafter acquire." Before the estate Y. had been conveyed, the husband contracted to sell it: it was held, that in equity the estate Y. was charged with the jointure (Warde v. Warde, 16 Beav. 103; Wellesley v. Wellesley, 4 M. & C. 554).

Where by a marriage settlement the husband and his father, “for providing a competent jointure" for the wife, settled moneys for the benefit of the husband, his wife, and the issue of the marriage, the wife's right to dower out of land subsequently acquired by the husband was barred (Dyke v. Rendall, 2 D. M. & G. 209). Marriage articles executed by a tenant in tail in remainder, whereby he agreed to execute a legal postnuptial settlement, to secure a jointure, were held a bar in equity to the wife's right of dower (Pennefather v. Pennefather, I. R. 6 Eq. 171). So in the case of marriage articles, whereby the intended husband covenanted that in case he should die in the lifetime of his intended wife, without issue by her, she should be entitled to one-half of what property, real or personal, he should die seised or possessed of (Hamilton v. Jackson, 2 J. & Lat. 295).

It has been said that in order to exclude the right to dower, there must be either an express declaration or a plain intention (Hamilton v. Jackson, 2 J. & Lat. 299; O'Rorke v. O'Rorke, 17 L. R. Ir. 153). A mere grant by a marriage settlement of an annuity to the wife surviving, has been held Lot to bar dower, even out of the lands charged with the annuity (Cody v. Cody, 5 L. R. Ir. 620; see Lemon v. Mark, 1899, 1 I. R. 416).

Where widow barred of

A stipulation in a marriage settlement, that the provision thereby made 3 & 4 Will. 4, for the wife was to be "in lieu of dower or thirds," was held, on the c. 105, s. 1. husband dying intestate, to bar the claim of his widow to a distributive share in his personal estate (Thompson v. Watts, 2 J. & H. 291; see Sambourne v. Barry, I. R. 6 Eq. 28; Gurly v. Gurly, 8 Cl. & Fin. 743; distributive Re Burgess, 11 Ir. Ch. R. N. S. 164; Colleton v. Garth, 6 Sim. 19; Coyne share in v. Duigan, 1894, 1 I. R. 138; Re Hogan, H. v. H., 1901, 1 Ir. R. 168). husband's As to the law of jointures, see 1 Rop. on Husband and Wife, by Bright, personalty. c. 10; Cruise's Dig. tit. 7; Bac. Abr. Dower and Jointure (G.); Gilb. on

Uses, by Sugd. p. 321, &c.

As to how far attendant terms could have been used to bar a right to Attendant dower, see Mole v. Smith, Jac. R. 496; Radnor v. Vandebendy, Show. P. terms. C. 69; Pr. Ch. 65; Swannock v. Lifford, 2 Atk. 208; Ambl. 6; Co. Litt. 208 a, n.; Willoughby v. Willoughby, 1 T. R. 763; Maundrell v. Maundrell, 10 Ves. 246; Wynn v. Williams, 5 Ves. 130; Butl. Co. Litt. 290 b, n. l. s. 13; Re Sleeman, 4 Ir. Ch. R. 563; 8 & 9 Vict. c. 112, post; Corry v. Cremorne, 12 Ir. Ch. R. 136; Anderson v. Pignet, 8 Ch. 180, post; and as to when a court of equity would relieve against them, see Dudley v. Dudley, Prec. Ch. 241; Radnor v. Rotherham, ib. 65; Williams v. Lambe, 3 B. Č. C. 264; Wilkins v. Lynch, 1 Hayes, Ir. R. 98.

As to the form of limitation to uses to bar dower, see Gilb. on Uses, by Uses to bar Sugd. 321-325, n.; Fearne, 347, n. by Butl. 7th ed.; 2 Dav. Conv. 210; dower. 3 Dav. Conv. 249, n. (0); Collard v. Roe (4 De G. & J. 525). A limitation to the old uses to bar dower will not deprive of her dower a woman married since the passing of the act (Fry v. Noble, 7 D. M. & G. 687; Re Michell, Moore v. Moore, 1892, 2 Ch. 99).

As to the defence as against a claim for dower of purchase for value Purchase without notice, see Williams v. Lambe, 3 Brown, C. C. 264; Collins V. without Archer, 1 R. & M. 292; Phillips v. Phillips, 4 D. F. & J. 217; Ind, Coope notice. v. Emmerson, 12 App. Cas. 300.

Under 13 Edw. 1, c. 34, a woman forfeits her dower by adultery, even Forfeiture of though brought about by her husband's cruelty (Hetherington v. Graham, dower by 6 Bing. 139; Woodward v. Dowse, 10 C. B. N. S. 722; Bostock v. Smith, adultery. 34 Beav. 57). Under the old law a divorce à vinculo matrimonii was a bar to dower (Frampton v. Stephens, 21 Ch. D. 164), and so now is a decree for dissolution of marriage (Ib.). As to the effect of a divorce à mensa et thoro, see Rolfe v. Perry, 11 W. R. 357; Shute v. Shute, Prec. Ch. 111. Dower was extinguished by a deed duly acknowledged by the wife, Bar by aceven where her name was not inserted as a co-grantor (Dent v. Clayton, knowledged 12 W. R. 903).

deed.

As to the remedies for the recovery of dower before 1860, see ante, Remedies for p. 182. Since that year the usual remedy has been by action in Chancery. the recovery For instances of such actions, see Sheaf v. Cave (24 Beav. 259); Bamford of dower. v. Bamford (5 Hare, 203); Marshall v. Smith (5 Giff. 37); Dawson v. Bank of Whitehaven (6 Ch. Div. 218); Meek v. Chamberlain (8 Q. B. D. 31); see also the forms of orders, Seton, 6th ed., 955, 1546; Kernaghan v. McNally (11 Ir. Ch. Rep. N. S. 52). As to costs, see Harris v. Harris (11 W. R. 62); Stormont v. Wickens (14 W. R. 192).

An action for dower must be brought within twelve years from the Limitation. death of the husband in the case of interests in possession (R. P. Lim. Act, 1833, ss. 2, 3; R. P. Lim. Act, 1874, s. 1; ante, pp. 122, 184; Marshall V. Smith, 5 Giff. 37). As to the arrears of dower which may be recovered, see ante, p. 200.

The Dower Act does not apply to freebench (Smith v. Adams, 5 D. M. Freebench. & G. 712). Freebench, in the absence of any custom to the contrary, does not attach even in right until the husband's death (Benson v. Scott, 12 Mod. 49; 2 Ves. sen. 633; Godwin v. Winsmore, 2 Atk. 526; R. v. Lopen, 2 T. R. 580; Brown v. Raindle, 3 Ves. jun. 256). And therefore any alienation by him alone, even by contract (Hinton v. Hinton, 2 Ves. sen. 631), to take effect in his lifetime, defeated 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.

3 & 4 Will. 4, c. 105, s. 1.

Gavelkind.

Widows to

be entitled to

dower out of equitable estates.

Old law.

Mortgages.

516; Gilb. Ten. 321; see 2 Watk. on Cop. 73-79; Shelford on Copyholds, pp. 68-72). And if a man surrendered his copyhold estate to the use of his will, and then devised it, the widow did not take freebench (Lacy v. Hill, 19 Eq. 350). Now under sect. 3 of the Wills Act a devise without a surrender has the same effect (1b.; see Powdrell v. Jones, 2 Sm. & G. 407, where it was held that a devise did not bar freebench, the special custom of the manor being that the title of the wife could only be destroyed by her voluntary surrender; Riddell v. Jenner, 10 Bing. 29; Doe v. Gwinnell, 1 Q. B. 582).

Where a purchaser of a copyhold took a surrender, but died before admittance; held, that his widow was not entitled to freebench (Smith v. Adams, 5 D. M. & G. 712). Secus, where the heir of the purchaser had been admitted (Vaughan v. Atkins, 5 Burr. 2764). 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. 499). Nor out of trust estates (Forder v. Wade, 4 Bro. C. C. 520).

The widow of a tenant in tail is entitled to freebench, though there is no custom as to the freebench of widows of tenants in tail, but only as to widows of tenants in fee (Doe 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, 69, 7th ed.

The Dower Act extends to lands of gavelkind tenure (Farley v. Bonham, 2 J. & H. 177). 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; see Re Maskell and Goldfinch, 1895, 2 Ch. 525).

2. When a husband shall die, beneficially entitled to any land for an interest which shall not entitle his widow to dower out of the same at law, and such interest, whether wholly equitable, or partly legal and partly equitable (m), shall be an estate of inheritance in possession, or equal to an estate of inheritance in possession (other than an estate in joint tenancy) (»), then his widow shall be entitled in equity to dower out of the same land.

(m) For examples of interests partly legal and partly equitable equal to an estate of inheritance in possession, see Re Michell, Moore v. Moore (1892, 2 Ch. 99). In that case, where the husband was at his death entitled to an equitable estate pur autre vie, and also a legal remainder expectant on the death of the c. q. vie without a second son, the widow took no dower.

Before this act there was no dower out of equitable estates (Dawson v. Bank of Whitehaven, 6 Ch. Div. 221; D'Arcy v. Blake, 2 Sch. & Lef. 388; Re Michell, Moore v. Moore, 1892, 2 Ch. 93).

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 (Dixon v. Saville, I Br. C. C. 326). 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 ; Flack v. Longmate, 8 Beav. 420; Knight v. Frampton, 4 Beav. 10). Where a

wife, married before the act, joined in a mortgage in fee of her husband's 3 & 4 Will. 4, land, to release her dower, she had no right to redeem (Dawson v. Bank of c. 105, s. 2. Whitehaven, 6 Ch. Div. 221). But where the husband died seised in fee,

a subsequent mortgage by the heir in which the widow joined did not extinguish her right to dower or reconveyance (Meek v. Chamberlain, 8 Q. B. D. 31).

So a woman is not entitled to dower of estates of which the husband was Reversions seised in fee, subject at the time of his marriage to leases for lives, which and remaindid not expire during the coverture (D'Arcy v. Blake, 2 Sch. & Lef. 387; ders. 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). There was no right of dower in land subject to a contract for sale at the time of the marriage. 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). Where a husband was seised in fee subject to a trust term to secure life annuities and to pay himself half the surplus rents, his widow was entitled to have her dower set out (Sheaf v. Cave, 24 Beav. 259). 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, his widow was, notwithstanding the operation of the executory devise over, entitled under this section to dower out of the land (Smith v. Spencer, 4 W. R. 729).

(n) The widow of a joint tenant in fee or in tail is not entitled to dower, Joint tenants. 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).

3. When a husband shell have been entitled to a right of Seisin shall entry or action in any land, and his widow would be entitled to not be necesdower out of the same, if he had recovered possession thereof, title to dower. sary to give 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.

A right of entry is where a man, who has the possession of lands, is Right of disseised or ousted, or, having a right to the possession, is kept out of it; entry. in which case he may peaceably make an entry upon the lands, or bring an action of ejectment to recover possession (see Rosc. on Real Actions,