devise of any land or any interest in any land out of which she might have been endowed, to her or for her benefit, will bar her dower not only of that but of all his other land, unless a contrary intention shall be declared by his will (n). Thus it appears that the wife's title to dower is put absolutely within the control of her husband, and now she can only be endowed out of lands of which he has died intestate and concerning which he has made no declaration against her dower. And her dower even of these lands may be lost by a devise to her of some interest in other lands (0). By

Common-law

We proceed to consider the method of endowment, or assigning dower. the old law, grounded on the feudal exactions, a woman could not be endowed without a fine paid to the lord; neither could she marry again withendowments. out his licence; lest she should contract herself, and *so [* 260 ] convey part of the feud to the lord's enemy (p). This licence the lords took care to be well paid for; and, as it seems, would sometimes force the dowager to a second marriage, in order to gain the fine. But to remedy these oppressions, it was provided, first by the charter of Henry I. (q), and afterwards by magna carta (r), that the widow shall pay nothing for her marriage (s), nor shall be distreined to marry afresh, if she chooses to live without a husband, but shall not, however, marry against the consent of the lord; and farther, that nothing shall be taken for assignment of the widow's dower, but that she shall remain in her husband's capital mansion-house for forty days after his death, during which time her dower shall be assigned. These forty days are called the widow's quarentaine; a term made use of in law to signify the number of forty days, whether applied to this occasion, or any other (t), (251) The particular lands, to be held in dower, must be assigned (u) by the heir of the husband, or his guardian; 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 thereof to the lord, and the widow is immediate tenant to the heir, by a kind of subinfeudation or under tenancy 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 sheriff assigns only with an estate for life. If the heir or his guardian do not assign her dower within the term of quarentaine, or assign it

If heir neglects,

dower.

(n) Ib. s. 9. (0) It has been held that a conveyance made prior to 1834 to the old uses to bar dower (as to which, see page 267), with an express declaration that the intention was that the purchaser's then present or any future wife should not be endowed, did not as against the heir-at-law bar the dower of a second wife married subsequently to the act. Fry v. Noble, 20 Beav. 598. In other words the declaration against dower must be in a deed executed subsequently to the act. By s. 14 the same necessity exists as to the will (dealing with dower) being executed after the 1st Jan. 1834.

(p) Mirr. c. 1, s. 3.
(q) Ubi supra.
(r) Cap. 7.

(8) See a note on this passage, by Mr. Justice Coleridge, in which it is contended that the word maritagium, here translated marriage, was used in the ordinary sense of that word for the portion or estate given to a husband with a wife, i.e., in frankmarriage.

(t) It signifies, in particular, the forty days, which persons coming from infected countries are sometimes, though rarely now, obliged to wait, before they are permitted to land in England. (u) Co. Litt. 34, 35.

(251) The widow's right of quarantine is well settled in this country, although the statutes of the different States have modified the rule as to the time of its duration, and as to the widow's rights until it is assigned. In many of the States she may remain in the mansion. house until her dower is assigned. See 1 Washb. Real Prop. 255, 256, note, 3d ed.

VOL. I.-73

| * 261 ] *unfairly, she has her remedy at law and the sheriff is appointed to assign it (x). Or if the heir (being under age) or his guardian assign more than she ought to have, it may be afterwards remedied by writ of admeasurement of dower (y). 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; as of the third presentation to a church, the third toll-dish of a mill, the third part of the profits of an office, of tithe, and the like (z).

A suit in equity is now the more usual mode of the widow's asserting her right to dower when disputed, the costs of which, if her claim be improperly resisted, are thrown upon the person so acting, though where now the usual there is no improper resistance each party pays his own costs (a).

Suit in equity

remedy.

(252.)

Tenancy in dower, even before the alteration of the law by the recent statute was not very common, for upon preconcerted marriages and in estates of considerable importance, the rights which the wife should enjoy as a widow, in respect of her husband's lands, were usually provided for by a settlement. This leads us to consider the methods by which dower may be barred or prevented, a subject much more important formerly than it is now. A widow may be barred of her dower not only by elopement, divorce, the treason of her husband, and other disabilities before mentioned (b), but also temporarily by [* 262] *detaining the title deeds, or evidences of the estate from the heir, until she restores them (c). By the statute of Gloucester (d), if a dowager aliened the land assigned her for dower, she forfeited it ipso facto, and the heir might recover it by action (e). But now an attempted alienation only carries the estate for life of the dowager, and no forfeiture ensues. A woman also might be barred of her dower, by levying a fine, or suffering a recovery of the lands, during her coverture (ƒ), when fines and recoveries were in use;

(x) Co. Litt. 34, 35. The writ of dower and plaints in the nature of a writ for dower or freebench were retained by 3 & 4 Will. 4, c. 27, 36, which abolished most of the ancient real and mixed actions.

(y) F. N. B. 148; Finch, L. 314; stat. Westm. 2, 13 Ed. 1, c. 7.

(2) C. Litt. 32; Doe d. Riddell v. Grinnell, 1 G. & D. 180.

(a) Lucas v. Calcraft, 1 Bro. C. C. 133; Mundy v. Mundy, 2 Ves. Jun. 128; Worgan v. Ryder, 1 Ves. & B. 20, and note; Bamford v. Bamford, 5 Hare, 203; Fry v. Noble, 20 Beav. 593; Harris v. Harris, 1 New Rep. 43.

(b) By the custom of Kent, the wife's dower of the moiety of gavelkind lands was in no case forfeitable for the felony of the husband, but where the heir should lose his inheritance. Noy's Max. 28. But this custom does not extend to treason. Wright's Tenures, 118; Rob. Gavelk. 292.

(c) Co. Litt. 39; 9 Rep. 15. (d) 6 Edw. 1, c. 7.

(e) "The mischief, before the making of this statute (Gloucester, c. 7), was not where a gift or feoffment was made in fee or for term of life (of a stranger), by tenant in dower; for, in that case, he in the reversion might enter for the forfeiture, and avoid the estate. But the mischief was, that when the feoffee, or any other, died seised, whereby the entry of him in the reversion was taken away, he in the reversion could have no writ of entry ad communem legem until after the decease of tenant in dower, and then the warranty contained in her deed barred him in the reversion if he were her heir, as commonly he was; and for the remedy of this mischief this statute gave the writ of entry in casu proviso in the lifetime of tenant in dower." 2 Inst. 309. But the statute was not intended to restrain tenant in dower from aliening for her own life, for alienation for such an estate wrought no wrong. Ib. (f) Pig. of Recoveries, 66.

(252) If the heir or tenant does not assign to the widow her legal dower, she has ample remedies, as in a common-law action of dower, or by ejectment, or by proceedings in equity, or by proceedings authorized by courts exercising probate jurisdiction. The particular practice in this respect must be sought in the statutes and decisions of the several States. See Tyler on Inf. & Cov. 589 to 601, 1 Washb. Real Prop. 259, etc., 3d ed.

and now a wife, who was married on the 1st January, 1834, whose dower it is desired to bar, may effect that object by a deed duly acknowledged by her. (253) But the most usual method of barring dowers for along time was by jointures, as regulated by the statute 27 Hen. 8, c. 10.

Jointure.

A jointure, which, strictly speaking, signifies a joint estate, limited to both husband and wife, but in common acceptation extends also to a sole estate, limited to the wife on her surviving her husband, is thus defined by sir Edward Coke (g): "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 27 Hen. 8, c. 10, [* 263] before mentioned, commonly called the statute of uses, of which we shall speak fully hereafter. At present we have only to observe, that before the making of that statute, the greatest 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 profits thereof, in another; whose directions, with regard to the disposition thereof, the former was in conscience obliged to follow, and might be compelled by a court of equity to observe. Now, though a husband had the use of lands in absolute fee-simple, yet the wife was not entitled to any dower therein: he not being seised thereof: therefore it became usual, on

(g) 1 Inst. 36.

(253) In this country the usual mode of barring dower is for the wife to join in the deed of conveyance, which ought to contain proper words of grant and release on her part, which shows an intention to release her dower. Fowler v. Shearer, 7 Mass. 14; Burge v. Smith, 27 N. H. 332; Kirk v. Dean, 2 Binn. 341; Learned v. Cutler, 18 Pick. 9; Smith v. Handy, 16 Ohio, 191, 236.

It is indispensable is most of the States that words expressive of such an intent should be used, or the right of dower will not be barred. Stevens v. Owen, 25 Me. 94; Leavitt v. Lamprey, 13 Pick. 382; Catlin v. Ware, 9 Mass. 218; Witter v. Biscoe, 13 Ark. 422.

The wife must be of full age or she cannot bar her dower by joining in the deed with her husband. Priest v. Cummings, 20 Wend. 338; Jones v. Todd, 2 J. J. Marsh, 359; Oldham v. Sale, 1 B. Monr. 76; Markham v. Merrett, 7 How. (Miss.) 437; Cason v. Hubbard, 38 Miss. 46; Thomas v. Gammel, 6 Leigh, 9; Hughes v. Watson, 10 Ohio, 127.

In many of the States the deed must be separately acknowledged by the wife, after a private examination apart from her husband, and generally the requirements of the law must be strictly complied with or the right of dower will not be barred. Kirk v. Dein, 2 Binn. 341; Sheppard v. Wardell, Coxe, 452; Clark v. Redman, 1 Black f. 379; Scanlan v. Turner, 1 Bailey, 421; Rodgers v. Woody, 23 Mo. 548; Lewis v. Coxe, 5 Harring. 402; Jackson v. Stevens, 16 Johns. 110; Elwood v. Klock, 13 Barb. 50; Sibley v. Johnson, 1 Mich. 380; Jordan v. Corey, 2 Ind. 385; Manning v. Laboree, 33 Me. 340.

A release of dower by the wife directly to the husband, during coverture, will not bar her right of dower. Carson v. Murray, 3 Paige, 483; Crain v. Cavana, 36 Barb. 410; 62 id. 109; Rowe v. Hamilton, 3 Me. 63; Martin v. Martin, 22 Ala. 104.

A contract between husband and wife and her trustee, during coverture, for the release of her dower, is not binding. Townsend v. Townsend, 2 Sandf. 711.

So an agreement to forbear dower, or a covenant not to claim it, is not a release of it, when made before marriage, and does not bar the claim. Croade v. Ingraham, 13 Pick. 33; Hastings v. Dickinson, 7 Mass. 153; Vance v. Vance, 21 Me. 364.

The rule at common law is very general that the husband must join with the wife in the deed which relinquishes her right of dower, and if he does not the right is not barred. Shaw v. Russ, 14 Me. 432; Powell v. Monson, 3 Mason, 353, 354; Stearns v. Swift, 8 Pick. 532; Page v. Page, 6 Cush. 196; Ulp v. Campbell, 19 Penn. St. 361; Moore v. Tisdale, 5 B. Monr. 352.

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. At length the statute of uses ordained, that such as had the use of lands should, to all intents and purposes, be reputed and taken to be absolutely seised and possessed of the soil itself. In consequence of which legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special lands that might be held in jointure: had not the same statute provided that upon making such an estate in jointure to the wife before marriage, she shall be for ever precluded from her dower (h). But then these four requisites must be punctually Four requisites to jointure. observed: 1. The jointure must be limited to take effect (i) immediately on the death of the husband. 2. It must be for her own life at least, and not pur autre vie, or for any term of years, or other smaller estate (k). *3. It must be made to herself, and no other in trust for her— [* 264] though this condition is not very material, as courts of equity will uphold as a good jointure a limitation of an equitable estate (m). 4. It must be made, and so in the deed particularly expressed to be (n), in satisfaction of her whole dower, and not any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, and may 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 coverture (o). And if, by any fraud or accident, a jointure though made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law. Though even in this case and notwithstanding the statute, if the wife was of full age when she married, she will be held, in a court of equity, bound by the contract then made by her (p). We may notice that dower may also be barred even when at the time of marriage the wife is an infant, by a settlement made, with that object, of personal property (g).

(k) Although the estate must be in point of quantity for her life, yet it may be such as may be determined sooner by her own act. Thus, an estate durante viduitate is a good jointure, because unless sooner determined by herself, it continues to her for life. 4 Rep. 3.

(m) Lacy v. Anderson, 1 Swan. 445; Glad stone v. Ripley, 2 Eden. 59; Corbett v. Corbett, 1 S. & S. 612; 5 Russ. 254.

(n) Where the assurance limiting the estate is not express as to its being in bar of dower, parol evidence to show that this was its intention seems not since the statute of Frauds to be admissible. (Tinney v. Tinney, 3 Atk. 8, though previously it was held otherwise; Vernon's Case, 4 Rep. 3; Tracy v. Ivies, 1 Leon, 311.) But it may be collected from the general tenor of the instrument that it was intended to be a jointure in bar of dower. Vizard v. Longdale, stated 3 Atk. 8; 1 Ves. Sen. 55; 2 Ed. 66; Crouch v. Stratton, 4 Ves. 894; Walker v. Walker, 1 Ves. Sen. 54; Garthshore v. Chalie, 10 Ves. 1; Hamilton v. Jack son, 2 Jo. & Lat. 295.

(0) This power of election is given by the statute. See as to its effect, Frank v. Frank, 3 M. & Cr. 171; Slatter v. Slatter, 1 Scott, 82; Beard v. Nutthall, 1 Vern. 427.

(p) Simpson v. Gutteridge, 1 Mad. 609. See also Parker v. Harvey, 4 Bro. P. C. 604; Car ruthers v. Carruthers, 4 Bro. C. C. 499; Gladstone v. Ripley, 2 Eden. 59, 73.

(q) Williams v.Chitty, 3 Ves. Jun. 545 ; Carruthers v. Carruthers, 4 Bro. C. C. 499; Smith v. Smith, 5 Ves. 188; Corbett v. Corbett, 1 S. & S. 612; 5 Russ. 254. Where through the default of the husband, the wife lost the benefit of a settlement, it still was held to bar her dower as against a purchaser. Dyke v. Rendall, 2 D. G. M. & G. 209.

These settlements, previous to marriage. seem to have been in use among the ancient Germans, and their kindred nation the Gauls. Of the former Tactius gives us this account: "Dotem non uxor marito, sed uxori maritus affert; intersunt parentes et propinqui, et munera probant." (De Mor. Germ. c. 18.) And Cæsar (de Bello Gallico, 1. 6, c. 18) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure: "Viri, quantas pecunias ab

dower and

[* 265]

*There are some advantages attending tenants in dower that do not extend to jointresses; and so vice versa, jointresses are in some respects more privileged than tenants in dower. Tenant in dower by the old Comparative common law was subject to no tolls or taxes; and hers is almost advantages of the only estate on which, when derived from the king's debtor, jointure. the king cannot distrain for rent, if contracted during the coverture (r). But, on the other hand, a widow may enter at once, without any formal process, on her jointure land: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower (s). And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow (t). Moreover, a jointure is not forfeited by the adultery of the wife, as dower is, and the court of chancery will specifically enforce against the husband the performance of articles for a settlement in lieu of dower, even though he proves that she has separated herself from him and lived in adultery (u). [*266] Besides the method of barring dower by jointure or settlement, a widow might be, and often was, practically deprived of her specific claim for dower by her husband's will even before the statute: for if he by his will gave her any benefits which, either by clear expression or necessary implication, were intended to be in lieu of her dower, a court of equity would restrain her from both taking the benefits under the will and claiming the dower. She was put to her election which she would take (x).

uxoribus dotis nomine acceperunt, tantas ex suis bonis, æstimatione factâ, cum dotibus communicant. Hujus omnis pecuniæ conjunctim ratio habetur, fructusque. Uter eorum vita superavit, ad eumpars utriusque cum fructibus superiorum pervenit." The dauphin's commentator on Cæsar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (Nov. 97) with regard to the provision for widows among the Romans; but surely there is as much reason to suppose, that it gave the hint for our statutable jointures.

(r) Co. Litt. 31 a; F. N. B. 150. (8) Co. Litt. 36.

(t) Ib. 37.

(u) Blount v. Winter, 3 Cox's P. W. 276 n.; Jee v. Thurlow, 2 B. & C. 547; and see Dormer v. Knight, 1 Taunt. 417.

(254).

"

(x) Harg. Co. Litt. 36, 6. The question in these cases is whether the testator meant to give away his wife's dower, which he could not do directly. For that it must be seen clearly that he meant to dispose, so that if she should claim dower, it would disappoint the will. It must appear there is a repugnancy," per Sir W. Grant, Greatorex v. Cary, 6 Ves. 614. For cases where the question as to this repugnancy has been discussed, see Harrrison v. Harrison, 1 Keen, 765; Ellis v. Lewis, 3 Hare, 310; Gibson v. Gibson, 1 Drew. 42; Warbutton v. Warbutton, 2 Sm. & G. 163; Parker v. Sowerby, 4 De G. M. & G. 321; Nottley v. Palmer, 2 Drew. 93; Sopwith v. Maughan, 30 Beav. 235; Wetherell v. Wetherell, 4 Giff. 51.

(254) A widow may be barred of her dower by a testamentary provision made by the husband, if she chooses to accept it, which she may do, or she may decline it and claim her dower. In some cases she may claim both such provision and dower; but where, by the terms of her husband's will, she cannot take both, she may elect which she will take. This right of election is strictly a personal one, and is not transmissible by descent. Bubier v. Roberts, 49 Me. 460, 463; Welch v. Anderson, 28 Mo. 293.

The intention of the testator that the wife shall elect must be gathered from the will, and it cannot be established by parol evidence. Stark v. Hunt, Salk. 216; Herbert v. Wren, 7 Cranch, 370, 378; Hall v. Hall, 8 Rich. (S. C.) 407; Whilden v. Whilden, Riley's Ch. (S. C.) 205; Higginbotham v. Cornwell, 8 Gratt. 83.

Where a provision in a will declares in terms that it is in lieu of dower, the widow may take either, but she cannot take both. Van Orden v. Van Orden, 10 Johns. 30; Jackson v. Churchill, 7 Cow. 287; Chapin v. Hill, 1 R. I. 446; Raines v. Corbin, 24 Ga. 185; Pemberton v. Pemberton, 29 Mo. 408.

In the case of a testamentary provision if the intention to bar dower is not clear, the