[2. We are next to enquire of what a widow may be endowed. By the common law, she was entitled to her dower out of all the lands and tenements of which her husband was solely seised in fee simple or in fee tail at any time during the coverture, and of which any issue, which she might have had, might by possibility have been heir (b). Therefore, if a man, seised in fee simple, hath a son by his first wife, and after marries a second wife, she 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. But, if there be a donee in special tail, who holds the lands to him and the heirs of his body, begotten on Jane his wife, though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed out of the lands. For no issue that she could have could by any possibility inherit them (c). 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 (d).] But a widow's position in regard to dower has now been greatly altered by the provisions of the Dower Act, 1833 (e), which puts it in the power of the husband to defeat her claim by any alienation, partial or complete, during his lifetime or by his will, or by any declaration in a deed or will to the effect that she shall not be entitled to dower out of his land, or any part thereof. On the other hand, subject to this power of deprivation, the widow is now entitled to dower out of the equitable interests, to the enjoyment of which her husband was beneficially entitled at the time of his decease, as

(b) Litt. ss. 36, 53. The right attached to incorporeal as well as to corporeal hereditaments, with certain exceptions. (See Co. Litt. 31 b, 32 a.)

(c) Litt. s. 53.
(d) Co. Litt. 31 a.

(e)
ss. 4-9.

& 4 Will. IV. c. 105,

well as out of claims not enforced by him during his lifetime (ƒ).

[3. Next, as to the manner in which a woman is to be endowed. There were, formerly, many species of dower; some of which have become entirely obsolete, and others have been abolished by express statute. So that there remain at present only two kinds, viz., dower by the common law, and dower by special custom. Postponing an account of the latter till we reach the subject of the interests specially affected by it, we proceed here to deal with dower at the common law.

By the old law, a woman could not be endowed without a fine paid to the lord; neither could she marry again without his licence, lest she should contract herself to the lord's enemy (g). And lords would sometimes force the dowager to a second marriage, in order to gain the fine; until it was provided by Magna Carta, that the widow should pay nothing for her marriage, nor be distrained to marry afresh, if she chose to live without a husband (h). And it was further provided by that Act, that nothing should be taken for the assignment of the widow's dower; but that she should remain in her husband's capital mansion-house for forty days after his death, during which time, called her quarentine, her dower should be assigned. In an assignment of dower, it was required that the particular lands should be assigned by the heir of the husband, or by his guardian (i) ; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the lands so holden. For the heir by this entry becomes tenant to the lord, and the widow is immediate tenant to the heir, by a kind of subinfeudation completed by this investiture or assignment (k). If the

(f) Ibid. ss. 2, 3.

(g) Mirror, cap. 1, s. 3.
(h) Cap. 7 (ed. Stubbs).

(2) Co. Litt. 34 b, 35 a.
(k) Gilb. Tenures, 173.

[heir or his guardian do not assign the widow her dower within the term of quarentine, or if they assign it unfairly, the widow has her remedy by action, and the sheriff or commissioners are directed to assign it (7). On the other hand, if the infant heir or the guardian assign too much, the heir has his remedy, formerly by writ of admeasurement, now by ordinary action, to recover the excess (m). If the thing of which the widow is endowed is divisible, her dower must, if she desires it, be set out by metes and bounds. But if it is indivisible, she must be endowed specially, as of the third presentation to a church, the third toll-dish of a mill, the third part of the profits of an office, the third sheaf of tithe, or the like (n).

4. How dower may be barred, or prevented. A widow may be barred of her dower, not only by elopement, divorce, and other disabilities before mentioned, but also by detaining the title-deeds of the estate from the heir, until she restores them (o). Her right is also, now, as was previously explained, entirely subject to the alienation or declaration of the husband, effected or made during his lifetime or by his will. But another method of barring a widow's dower, common in former times, though not now so usual, was by the settlement upon her of a jointure.

66

A jointure is defined by Sir Edward Coke as "a com"petent livelihood of freehold for the wife, of lands or tenements, to take effect presently in possession or "profit after the decease of the husband, for the life of "the wife at least "(p). This description is framed from the purview of the 27 Hen. VIII. c. 10, commonly called the Statute of Uses, passed in the year 1535, which provided that, upon the husband's making or procuring

(1) Co. Litt. 34 b, 35 a.

(m) F. N. B. 148; Finch, Discourse, 314; Stat. Westr. II. (1285) 13 Edw. I. c. 7.

(n) Co. Litt. 32 a. (0) Anne Bedingfield's Case. (1586) 9 Rep. 15 b.

(p) Co. Litt. 36 b.

1

charge of

[to be made such an estate in jointure to the wife before
marriage, she should be for ever precluded from her
dower (q).
But then these four requisites must be
punctually observed. 1. The jointure must take effect
immediately on the death of the husband. 2. It must
be for the wife's own life at the least, and not for any
smaller estate. 3. It must be made to herself, and to
no other in trust for her. 4. It must be made, and so
in the deed particularly expressed, to be in satisfaction of
her whole dower, and not of any particular part of it (r).
At least this was the rule at law; but in equity, any
provision accepted by a woman (not being an infant)
before her marriage, in lieu of dower, was a good bar (s).
If the jointure was made to her after marriage, she had
her election after her husband's death, and might either
accept it or refuse it, and betake herself to her dower at
common law; for she was not capable of consenting to it
during the coverture (t). Also if, by any fraud or acci-
dent, a jointure, made before marriage, proved to be on
a bad title, and the jointress was evicted, then, by the
express provisions of the same statute, she was to have
her dower, pro tanto, at the common law (u).]

Independently of the bar of dower by way of jointure, if the husband made any provision for his wife by will or otherwise, in such a manner as clearly to indicate an intention that the provision so made should be taken in lieu of dower, she was barred by her acceptance, after his death, of the provision so made, though she had an option or election to accept it or not (v).

() Vernon's Case, (1572) Rep. 1.

(r) Tinney v. Tinney, (1743) 3 Atk. 8.

(s) Dyke v. Rendall, (1852) 2 De Gex M. & G. 209.

(t) Quere, if this rule has been altered by the provisions of the Married Women's Property Act,

(u) Statute of Uses, (1535) s. 7. But it is doubtful if this provision could be enforced, in equity, as against a stranger. (See Dyke v. Rendall, ubi sup.) And, since the Dower Act, the matter is of little practical importance.

(e) Lawrence v. Lawrence, (1699) 2 Vern. 365.

Dower would also have been barred if the husband, on his original purchase, had taken the conveyance of the land in the form of to uses to bar dower, a complicated process designed to prevent a legal estate of inheritance vesting in the husband, while, at the same time, conferring upon him the beneficial interest in the property. Curiously enough, the Dower Act of 1833, which enabled. the husband, as we have said, to bar his widow's claim to dower, not only by alienation of the property, but by mere declaration in his purchase-deed, has rendered the elaborate precautions of the uses to bar dower unavailing, by entitling the wife to claim dower out of equitable interests. But the complete control over dower conferred on the husband by that Act, has really rendered all such precautions needless, if not positively mischievous. The claims to dower which now arise are few in number; and occur generally in cases in which a man, either by oversight or sudden death, has failed to make due provision for his widow. They can in no way prejudice, as they formerly did, the interests of the purchasers or mortgagees who have taken from the husband; for all such alienations are absolute bars to claims of dower. Nor can they interfere with the intentions of the husband; for all such intentions, at least if properly expressed, also override the widow's claim. Finally, even a devise to the widow of any interest in land out of which she would have been entitled to dower, bars her claim to dower in all her husband's land, unless a contrary intention is declared by the will (x).

(x) Dower Act, 1833 (3 & 4 Will. IV. c. 105), s. 9.