attainted of treason or felony could not be endowed; to the intent, says Staunforde, (n) that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may, though Britton (0) gives it another turn: viz.: that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. VI, c. 12, abated the rigour of the common law in this particular, and allowed *the wife her dower. But a sub[*131] sequent statute (p) revived this severity against the widows of traitors, who are now barred of their dower (except in the case of certain modern treasons relating to the coin,) (q) but not the widows of felons. An alien also cannot be endowed, (21) unless she be queen consort; for no alien is capable of holding lands. (r) The wife must be above nine years old at her husband's death, otherwise she shall not be endowed: (s) though in Bracton's time the age was indefinite, and dower was then only due "si uxor possit dotem promereri, et virum sustinere.” (t)

2. We are next to inquire, of what a wife may be endowed. And she is now by law entitled to 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, might by possibility have been heir. (u) Therefore, if a man be 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 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 of the lands entailed; for no issue that she could have, could by any possibility inherit them. (v) 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 if such lands whereof the wife, or he himself in her right, was actually seised in deed. (w) The seisin of the husband, for a transitory [*132] instant *only, when the same act which gives him the estate conveys it also out of him again (as where, by a fine, land is granted to a man, and he immediately renders it back by the same fine,) such a seisin will not entitle the wife to dower; (x) (22) for the land was merely in transitu, and never rested in the husband, the grant and render being one continued act. But, if the land abides in him for the interval of but a single moment, it seems that the wife

The validity of a marriage, except where it is incestuous or polygamous, is to be determined by the law of the country where it was celebrated: if valid there, it is generally to be held valid every where.

(21) This is no longer the law. See statute 7 and 8 Vic. c. 66.

(22) The time during which the seisin continues is wholly immaterial, so that it be a beneficial seisin in the husband. Broughton v. Randall, Cro. Eliz. 502. But if one receive the title for the purpose solely of passing it over to another, or as naked trustee, his wife has no dower. McCauley v. Grimes, 2 Gill and J. 318. And if one buy land and give a mortgage for the purchase price, his wife will have dower only subject to the mortgage, even though it may have been given at a time subsequent to the giving of the deed. Wheatley v. Calhoun, 12 Leigh. 264. See, further, Clark v. Munroe, 14 Mass. 351; Mayburry v. Brien, 15 Pet. 39; Smith v. Stanley, 37 Me. 11. But the wife in such cases has dower in the whole lands, as against every one but the mortgagee or those claiming under him. Bullard v. Bowers, 10 N. H. 500; Keckley v. Keckley, 2 Hill Ch. 250; Washb. on Real Prop. 175-179.

It is not always essential, in order to establish the right of the wife to dower, that she should prove an actual or constructive seisin in the husband. If one is in possession of lands claiming title, and has derived his possession and claims from the husband, either by descent or by purchase, the widow is prima facia entitled to dower; and it has sometimes been held that the party so in possession was estopped from disputing her right, but this, it is believed, is not the true rule. See this subject fully examined in Sparrow v. Kingman, 1 N. Y. 242.

Chap. 8.]

ESTATE IN DOWER.

shall be endowed thereof. (y) And, in short, a widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorporeal, (23) under the restrictions before mentioned; unless there be some special reason to castle built for defence the contrary. Thus a woman shall not be endowed of

of the realm: (2) nor of a common without stint; for, as the heir would then have one portion of this common, and the widow another, and both without stint, the common would be doubly stocked. (a) Copyhold estates are also not liable to dower, being only estates at the lord's will; unless by the special custom of the manor, in which case it is usually called the widow's free bench. (b) But where dower is allowable, it matters not though the husband aliene the lands during the coverture; for he alienes them liable to dower. (c) (24)

3. Next, as to the manner in which a woman is to be endowed. There are now subsisting four species of dower; the fifth, mentioned by Littleton, (d) de la plus belle, having been abolished together with the military tenures, of which it was a consequence. 1. Dower by the common law; or that which is before described. 2. Dower by particular custom; (e) as that the wife should have half the husband's lands, or in some places the whole, and in some only a quarter. [*133] 3. Dower ad ostium ecclesiæ, (f) (25) which is where tenant in fee-*simple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (Sir Edward Coke in his translation of Littleton, adds) troth plighted between them, doth endow the wife with the whole, or such quantity as he shall please, of his lands; at the same time specifying and ascertaining the same; on which the wife, after her husband's death, may enter without further ceremony. 4. Dower ex assensu patris; (g) which is only a species of dower ad ostium ecclesia, made when the husband's father is alive, and the son by his consent, expressly given, endows his wife with parcel of his father's lands. In either of these cases, they must (to prevent frauds) be made (h) in facie ecclesiæ et ad ostium ecclesiæ; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuere conjugia.

It is curious to observe the several révolutions which the doctrine of dower has undergone, since its introduction into England. It seems first to have been of the nature of the dower in gavelkind, before mentioned; viz.: a moiety of the husband's lands, but forfeitable by incontinency or a second marriage. By the famous charter of Henry I, this condition of widowhood and chastity was only required in case the husband left any issue; (i) and afterwards we hear no more of it. Under Henry the Second, according to Glanvil, (k) the dower ad ostium ecclisia was the most usual species of dower; and here, as well as in (y) This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became scised of an estate in fee by survivorship, in consequence of which seisin his widow had a verdict for her dower, (Cro. Eliz. 503.) (z) Co. Litt. 31. 3 Lev. 401. (c) Co. Litt. 32.

(a) Co. Litt. 32. 1 Jon. 315.
(e) Litt. § 67.
(d) Co. Litt. §§ 48, 49.
(h) Bracton, l. 2, c. 39, § 4.

(b) 4 Rep. 22. (f) Ibid. 39.

(g) Ibid. § 40. (i) Si mortuo viro uxor ejus remanserit, et sine liberis fuerit, dotem suam habebit ;—si vero uxor cum liberis remanserit, dotem quidem habebit, dum corpus suum legitime servaverit. (Cart. Hen. I, A. D. 1001.) Introduc. to great charter, edit. Oxon. pag. iv.

(k) l. 6, c. 1 and 2.

(23) [Our author, we may be sure, did not mean to intimate that a widow was entitled to dower out of all her husband's incorporeal hereditaments, of what nature soever; but only out of such incorporeal hereditaments as savor of the realty. Buckeridge v. Ingram, 2 Ves. Jun. 664.]

(24) [If a man has made an exchange of lands, his widow must not be endowed both out of the lands given in exchange, and also of those taken in exchange, though the husband was seized of both during the coverture. The widow, however, may make her election out of which of the two estates she will take her dower. Co. Litt. 31 b.]

In the United States dower is generally held to attach to estates of inheritance to which the husband is entitled as cestui que trust; but in some states the doctrine is otherwise. See 1 Washb. on Real Prop. 163.

In England the wife now has dower in the husband's equitable estates of inheritance. Stat. 3 and 4 Wm. IV, c. 105.

(25) [Dower ad ostium ecclesia, and dower ex assensu patris, are both abolished by statute 3 and 4 Wm. IV, c. 105, s. 13.]

415

Normandy, (1) it was binding upon the wife, if by her consented to at the time of marriage. Neither, in those days of feudal rigour, was the husband allowed to endow her ad ostium ecclesia with more than the third part of the lands whereof he then was seised, though he might endow her with less; lest by such liberal endowments the lord should be defrauded of his wardships and other feudal profits. (m) But if no specific dotation was made at the *church [*134] porch, then she was endowed by the common law of the third part (which was called her dos rationabilis) of such lands and tenements as the husband was seised of at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquisitions: (n) and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower (o) in lands which he afterwards acquired. (p) In King John's magna carta, and the first chapter of Henry III, (q) no mention is made of any alteration of the common law, in respect of the lands subject to dower: but in those of 1217 and 1224, it is particularly provided, that a widow shall be entitled for her dower to the third part of all such lands as the husband had held in his lifetime: (r) yet in case of a specific endowment of less ad ostium ecclesiæ, the widow had still no power to waive it after her husband's death. And this continued to be law during the reigns of Henry III and Edward I. (s) In Henry IV's time it was denied to be law, that a woman can be endowed of her husband's goods and chattels: (t) and, under Edward IV, Littleton lays it down *expressly, that a woman may be endowed ad [*135] ostium ecclesiæ with more than a third part; (u) and shall have her election, after her husband's death, to accept such dower or refuse it, and betake herself to her dower at common law. (w) Which state of uncertainty was probably the reason, that these specific dowers, ad ostium ecclesiæ and ex assensu patris, have since fallen into total disuse. (26)

I proceed, therefore, to consider the method of endowment or assigning dower, by the common law, which is now the only usual species. By 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 without his license; lest she should contract herself, and so convey part of the feud, to the lords enemy. (a) This license 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, (y) and afterwards by magna carta, (2) that the widow shall pay nothing for her marriage, nor shall be distrained 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

(1) Gr. Coustum. c. 101.

(m) Bract. 1. 2. c. 39, § 6.

(n) De questu suo. (Glan. ib.)—de terris acquisitis et acquirendis. (Bract. ib.) (0) Glanv. c. 2. (P) When special endowments were made ad ostium ecclessia, the husband after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife (quod dotam eam de tali manerio cum pertinentiis, &c. Bract. ibid.) and therefore in the old York ritual (Seld. Ux. Hebr. 1. 2, c. 27). there is, at this part of the matrimonial service, the following rubric: sacerdos interroget dotem mulieris et, si terra ei in dotem detur, tunc dicatur psalmus iste, fc." When the wife was endowed generally 'ubi quis uxorem suam dotaverit in generali, de omnibus terris et tenementis; Bract. ib.) the husband seems to have said, "with all my lands and tenements I thee endow ;" and then they all became liable to her dower. When he endowed her with personalty only, he used to say, "with all my wordly goods (or, as the Salisbury ritual has it, with all my worldly chattel) I thee endow;" which entitled the wife to her thirds, or pars rationabilis, of his personal estate, which is provided for by magna carta, cap. 28, and will be farther treated of in the concluding chapter of this book; though the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her husband's personalty.

(q) A. D. 1216, c. 7, edit. Oxon.

(r) Assignetur autem ei pro dote sua tertia pars totius terræ mariti sui quæ sua fuit in vita sua, nisı de minori dotata fuerit ad ostium ecclesiæ C. 7. (Ibid.)

(8) Bract. ubi supra. Britton, c. 101, 102. Flet. 1. 5, c. 23, §§ 11, 12.

(t) P. 7 Hen. IV, 13, 14.

(y) Ubi supra. (z) cap. 7.

(u) 39. F. N. B. 150.

(w) 41.

(x) Mirr. c. 1, § 3.

(26) The only species of dower which exist in the United States are: 1. Dower at the common law, under which head would be included all cases in which dower exists independent of statute, or only regulated by it; and 2. Dower by statute, where something is given as a substitute for that to which the widow was entitled as dower before. See 1 Washb. Real Prop. 149.

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 quarantine, a term made use of in law to signify the number of forty days, whether applied to this occasion, or any other. (a) The particular lands, to be held in dower, must be assigned (b) 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 sub-infeudation, or under-tenancy completed by this investi[*136] ture 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. If the heir or his guardian do not assign her dower within the term of quarantine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it. (c) Orif 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. (d) 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 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, and the like. (e) (27)

Upon preconcerted marriages, and in estates of considerable consequence, tenancy in dower happens very seldom for the claim of the wife to her dower at the common law diffusing itself so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alteration of the ancient law respecting dower ad ostium ecclesiæ, which hath occasioned the entire disuse of that species of dower, jointures have been introduced in their stead, as a bar to the claim at common law. Which leads me to inquire, lastly,

4. How dower may be barred or prevented. (28) A widow may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband, and other disabilities before mentioned, but also by detaining the title deeds or evidences of the estate from the heir, until she restores then: (ƒ) and, by the statute of Gloucester, (g) if a dowager alienes the land assigned her for dower, she forfeits it ipso *facto, and the heir may recover it by action.(29)

A woman also may be barred of her dower, by levying a fine, or suffering [*137]

(a) It signifies, in particular, the forty days, which persons coming from infected countries are obliged to wait, before they are permitted to land in England.

(b) Co. Litt. 34. 35. (e) Co. Litt. 32.

(c) Ibid.
(f) Ibid. 39.

(d) F. N. B. 148. Finch. L. 314. Stat. Westm. 2. 13 Edw. I, c. 7. (g) 6 Edw. I, c. 7.

(27) The widow's quarantine is considerably enlarged in the United States by statute, but the rule, we suppose, still obtains that dower should be assigned during its continuance. The following may be stated as the modes in which she may obtain an assignment: 1. The owner of the reversion should make assignment; and in that case no writing is necessary, but it is sufficient if made by parol and accepted by the dowress. Meserve v. Meserve, 19 N. H. 240; McCormick v. Taylor, 2 Ind. 336; Jones v. Brewer, 1 Pick. 314; Blood v. Blood, 23 id. 80. But the_dowress is not compelled to accept the assignment of the reversioner, and in that case, 2. Dower may be assigned, as of common right, by legal proceedings on the application of the reversioner. Precisely what those legal proceedings must be, will depend upon the statutes of the state. 3. The courts empowered to take cognizance of proceedings in the settlement of estates of deceased persons are usually empowered, as incidental to such settlement, to assign dower to the widow in all the lands of which her husband died seised of an estate of inheritance, but not in any which he had previously conveyed. 4. If dower be not assigned in either of the preceding modes, the widow may bring her action at law for it, or a suit in equity. Palmer v. Casperson, 2 Green N. J. 204; Brooks v. Woods, 40 Ala. 538.

(28) [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. 230.]

(29) ["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 VOL. I.-53 417

a recovery of the lands, during her coverture. (h) (30) But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII, c. 10. (31)

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 only, is thus defined by Sir Edward Coke; (i) "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 Henry VIII, c. 10, before-mentioned; commonly called the statute of uses, of which we shall speak fully hereafter. At present I 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 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: 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. 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 settled in jointure: had not the same statute provided, that *upon making such an estate in jointure [*138] to the wife before marriage, she shall be forever precluded from her dower. (k) But then these four requisites must be punctually observed: 1. The

mischief was, that when the feoffee, or 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 such an estate wrought no wrong. Id.]

(30) The most usual mode of barring dower in America is by the wife joining with the husband in a deed of conveyance of his lands, and acknowledging the same in such manner as the statute prescribes shall be effectual for this purpose. The statutes are not uniform in their provisions, but generally they provide for some examination of the wife by an officer, separate and apart from the husband, in order to make certain that she is not acting under compulsion. These provisions must be strictly complied with, or the bar will not be effectual. Elwood v. Klock, 13 Barb. 50; Sibley v. Johnson, I Mich. 380; Barstow v. Smith, Wal. Ch. 394; Jordan v. Corey, 2 Ind. 385; Witter v. Biscoe, 8 Eng. 422; Manning v. Laboree, 33 Me. 343. The wife must be twenty-one years of age to render the act effectual, as the statute only relieves her from the disability of coverture. Hughes v. Watson, 10 Ohio, 127; Jones v. Todd. 2 J. J. Marsh. 359; Thomas v. Gammel; 6 Leigh, 9; Priest v. Cummings, 16 Wend. 617, and 20 id. 338; and the deed ought to contain words of release on her part. Catlin v. Ware, 9 Mass. 218; Stevens v. Owen, 25 Me. 94; Leavitt v. Lamprey, 13 Pick. 382; Witter v. Biscoe, 8 Eng. 422. But in some states this is not necessary. See Burge v. Smith, 7 Fost. 332. The wife cannot release her contingent right of dower by parol. Keeler v. Tatnell, 3 N. J. 62. And even her agreement by parol with one to whom as administratrix on the estate of her husband she sells the land, that she will not claim dower in it, will not be binding upon her. Wright v. De Groff, 14 Mich. 164. But see as to this, Connolly v. Branstler, 3 Bush, 702. In some of the states if the husband's estate is sold for the satisfaction of his debts, the wife's right of dower is gone; but this is not the general rule. The foreclosure of a mortgage given by the husband before the marriage, or given afterwards and executed by the wife in due form of law, will bar her right. Farwell v. Cotting, 8 Allen, 211; Nottingham v. Calvert, 1 Ind. 527; Lewis v. Smith, 9 N. Y. 502. By agreement in a deed of separation, a wife may also bar herself of all claim to dower. Stephenson v. Osborne, 41 Miss. 119; Hitner's Appeal, 54 Penn. St. 110.

(31) Upon the subject of Jointure see Cruise Dig. 196 and index, tit. Jointure, and 1 Washb. Real Prop. Book 1, ch. 8. Jointures are uncommon in the United States, and questions concerning them arise but seldom.