Front Page Titles (by Subject) CHAPTER VIII.: OF FREEHOLDS, NOT OF INHERITANCE. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER VIII.: OF FREEHOLDS, NOT OF INHERITANCE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF FREEHOLDS, NOT OF INHERITANCE.
We are next to discourse of such estates of freehold as are not of inheritance, but for life only. And of these estates for life, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law.(a) We will consider them both in their order.
1. Estates for life, expressly created by deed or grant, (which alone are properly conventional,) are where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one: in any of which cases he is styled tenant for life; only when he holds the estate by the life of another, he is usually called tenant pur auter vie.(b) These estates for life are, like inheritances, of feodal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen)(c) was not in its original hereditary. They are given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves are; and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on.
*[*121Estates for life may be created, not only by the express words before mentioned, but also by a general grant, without defining or limiting any specific estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for life.(d) For though, as there are no words of inheritance or heirs, mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for a term of life generally, shall be construed to be an estate for the life of the grantee;(e) in case the grantor hath authority to make such grant: for an estate for a man’s own life is more beneficial and of a higher nature than for any other life: and the rule of law is, that all grants are to be taken most strongly against the grantor,(f) unless in the case of the king.
Such estates for life will, generally speaking, endure as long as the life for which they are granted: but there are some estates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone.(g) Yet while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death: as if he enters into a monastery, whereby he is dead in law:(h) for which reason in conveyances the grant is usually made “for the term of a man’s natural life;” which can only determine by his natural death.(i)1
*[*122The incidents to an estate for life are principally the following; which are applicable not only to that species of tenants for life, which are expressly created by deed; but also to those which are created by act and operation of law.
1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers(k) or botes.(l) For he hath a right to the full enjoyment and use of the land, and all its profits, during his estate therein. But he is not permitted to cut down timber, or to do other waste upon the premises:(m) for the destruction of such things as are not the temporary profits of the tenement is not necessary for the tenant’s complete enjoyment of his estate; but tends to the permanent and lasting loss of the person entitled to the inheritance.1½
2. Tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such a determination is contingent and uncertain.(n) Therefore if a tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop: for the estate was determined by the act of God, and it is a maxim in the law, that actus Dei nemini facit injuriam.2 The representatives, therefore, of the tenant for life shall have the emblements to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it. Wherefore by the feodal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but if he died between the beginning of March and the end *[*123of August, the heirs of the tenant received the whole.(o) From hence our law of emblements seems to have been derived, but with very considerable improvements. So it is also, if a man be tenant for the life of another, and cestuy que vie, or he on whose life the land is held, dies after the corn sown, the tenant pur auter vie shall have the emblements. The same is also the rule, if a life-estate be determined by the act of law. Therefore if a lease be made to husband and wife during coverture, (which gives them a determinable estate for life,) and the husband sows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the act of law.(p) But if an estate for life be determined by the tenant’s own act, (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry,) in these, and similar cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements.(q) The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expense and labour of the tenant, but are either a permanent or natural profit of the earth.(r)3 For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to himself in future, and to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. 11. For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.
3. A third incident to estates for life relates to the under-tenants, or lessees. For they have the same, nay, greater indulgences than the lessors, the original tenants for life. The same; for the law of estovers and emblements **124]with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place:(s) and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. As in the case of a woman who holds durante viduitate; her taking husband is her own act, and therefore deprives her of the emblements; but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger, and could not prevent her.(t)4 The lessees of tenants for life had also at the common law another most unreasonable advantage; for at the death of their lessors, the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to anybody for the occupation of the land since the last quarter-day, or other day assigned for payment of rent.(u) To remedy which, it is now enacted(v) that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a ratable proportion of rent from the last day of payment to the death of such lessor.5
II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens where one is tenant in special tail; and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct: in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue:(w) in this case the man has an estate tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that *[*125would not have distinguished him from others; and besides, he has no longer an estate of inheritance or fee,(x) for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail, which he once had, but also states that this possibility is now extinguished and gone.
This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them.(y) A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old.(z)
This estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as not to be punishable for waste, &c.;(a)6 or, he is tenant in tail, with many of the restrictions of a tenant for life; as to forfeit his estate, if he alienes it in fee-simple:(b) whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner: who is not concerned in interest, **126]till all possibility of issue be extinct. But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life, which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature.
III. Tenant by the curtesy of England is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail, and has by her issue, born alive, which was capable of inheriting her estate. In this case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England.(c)
This estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it is said in the Mirrour(d) to have been introduced by king Henry the First; but it appears also to have been the established law of Scotland, wherein it was called curialitas,(e) so that probably our word curtesy was understood to signify rather an attendance upon the lord’s court or curtis, (that is, being his vassal or tenant,) than to denote any peculiar favour belonging to this island.7 And therefore it is laid down(f) that by having issue, the husband shall be entitled to do homage to the lord, for the wife’s lands, alone: whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of king Henry III.(g) It also appears(h) to have obtained in Normandy; and was likewise used among the ancient Almains or Germans.(i) And yet it is not generally apprehended to have been a consequence of feodal tenure,(k) though I think some substantial feodal reasons may be given for its introduction. For if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to *[*127the profits of the lands in order to maintain it; for which reason the heir-apparent of a tenant by the curtesy could not be in ward to the lord of the fee, during the life of such tenant.(l) As soon therefore as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate: and this estate, being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant.
There are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of the wife.(m) 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin, or possession of the lands; not a bare right to possess, which is a seisin in law,8 but an actual possession, which is a seisin in deed.9 And therefore a man shall not be tenant by the curtesy of a remainder or reversion.10 But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife: as in case of an advowson, where the church has not become void in the lifetime of the wife: which a man may hold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem.(n) If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she herself has any title: and since she could never be rightfully seised of the lands, and the husband’s title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy.(o)11 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of its being born alive; but it is not the only evidence.(p) The issue also must be born during the life of the mother, for if the mother dies in labour, and the Cæsarean operation is performed, the husband in this case shall not be tenant by the *[*128curtesy; because, at the instant of the mother’s death, he was clearly not entitled, as having had no issue born, but the land descended to the child while he was yet in his mother’s womb; and the estate, being once so vested, shall not afterwards be taken from him.(q) In gavelkind lands, a husband may be tenant by the curtesy, without having any issue.(r) But in general there must be issue born: and such issue as is also capable of inheriting the mother’s estate.(s) Therefore if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male.(t) And this seems to be the principal reason, why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised: because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife: but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised; and therefore as the husband hath never begotten any issue that can be heir to those lands,12 he shall not be tenant of them by the curtesy.(u) And hence we may observe, with how much nicety and consideration the old rules of law were framed; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture; for, whether it were before or after the wife’s seisin of the lands, whether it be living or dead at the time of the seisin, or at the time of the wife’s decease, the husband shall be tenant by the curtesy.(w) The husband by the birth of the child becomes (as was before observed) tenant by the curtesy initiate,(x) and may do many acts to charge the lands, but his estate is not consummate till the death of the wife: which is the fourth and last requisite to make a complete tenant by the curtesy.(y)13
**129]IV. Tenant in dower is where the husband of a woman is seised of an estate of inheritance, and dies: in this case, the wife shall have the third14 part of all the lands and tenements whereof he was seised at any time during the coverture, to hold to herself for the term of her natural life.(z)
Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos: which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance: nor indeed is there any thing in general more different than the regulations of landed property according to the English and Roman laws. Dower out of the lands seems also to have been unknown in the early part of our Saxon constitution; for in the laws of king Edmond,(a) the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands; with a proviso that she remained chaste and unmarried;(b) as is usual also in copyhold dowers, or free bench.15 Yet some(c) have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feodal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens, tertia,(d) and dotalitium) by the emperor Frederick the Second;(e) who was contemporary with our king Henry III. It is possible, therefore, that it might be with us the relic of a Danish custom: since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the Great, out of gratitude to the Danish ladies, who sold all their **130]jewels to ransom him when taken prisoner by the Vandals.(f) However this be, the reason which our law gives for adopting it, is a very plain and sensible one; for the sustenance of the wife, and the nurture and education of the younger children.(g)
In treating of this estate, let us, first, consider who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how dower may be barred or prevented.
1. Who may be endowed. She must be the actual wife16 of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos.(h) But a divorce a mensa et thoro only doth not destroy the dower;(i) no, not even for adultery itself by the common law.(k) Yet now by the statute West. 2.(l) if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her.17 It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy;(m) but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. By the antient law, the wife of a person 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(o) 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 *[*131the wife her dower. But a subsequent 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,18 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)19 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 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 of 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 instant **132]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) 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 shall be endowed thereof.(y)20 And, in short, a widow may be endowed of all her husband’s lands, tenements, and hereditaments, corporeal or incorporeal,21 under the restrictions before mentioned; unless there be some special reason to the contrary. Thus a woman shall not be endowed of a castle built for defence of the realm:(z) 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)22
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.23 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 3. Dower ad ostium ecclesiæ:(f) which is where tenant in fee-**133]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 ecclesiæ, 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 fuerint conjugia.
It is curious to observe the several revolutions 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 ecclesiæ was the most usual species of dower; and here, as well as in Normandy,(l) it was binding upon the wife, if by her consented to at the time of marriage. Neither, in those days of feodal rigour, was the husband allowed to endow her ad ostium ecclesiæ 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 feodal profits.(m) But if no specific dotation was made at the **134]church 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 *[*135expressly, that a woman may be endowed ad 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.24
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 feodal 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 lord’s enemy.(x) 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,(z) that the widow shall pay nothing for her marriage, 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 further, 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 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 *[*136thereof 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 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) 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.(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 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, and the like.(e)
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. A widow may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband,25 and other disabilities before mentioned, but also by detaining the title-deeds or evidences of the estate from the heir, until she restores them:(f) and, by the statute of Gloucester,(g) if a dowager alienes the land assigned her for dower, she forfeits it ipso **137]facto, and the heir may recover it by action.26 A woman also may be barred of her dower, by levying a fine, or suffering a recovery of the lands, during her coverture.(h)27 But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.
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 the 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: 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,28 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 *[*138upon making such an estate in jointure to the wife before marriage, she shall be forever precluded from the dower.(k) 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 her own life at least, and not pur auter vie, or for any term of years, or other smaller estate.29 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be30 in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband’s death, as in dower ad ostium ecclesiæ, 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. And if, by any fraud or accident, a jointure 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.(l)31
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 common law is subject to no tolls or taxes; and hers is almost the only estate on which, when derived from the king’s debtor, the king cannot distrein for his debt; if contracted during the coverture.(m) But, on the other **139]hand, a widow may enter at once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiæ, which a jointure in many points resembles; and the resemblance was still greater while that species of dower continued in its primitive state: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower.(n) And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow.(o) Wherefore Sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiæ, the most eligible species of any.32
[(a) ] Wright, 190.
[(b) ] Litt. 56.
[(c) ] Page 55.
[(d) ] Co. Litt. 42.
[(e) ] Co. Litt. 42.
[(f) ] Ibid. 36.
[(g) ] Ibid. 42. 3 Rep. 20.
[(h) ] 2 Rep. 48.
[(i) ] See book i. p. 132.
[1 ] It is to be observed that an estate for life may also be determined before the termination of the natural life of the tenant, by forfeiture. This arises whenever the tenant assumes to convey the land in fee or fee-tail by such a conveyance as transfers the land directly, and passes more than the alienor has; which is therefore termed a tortious conveyance. Such are feoffments with livery of seisin and common recoveries. Redfern vs. Middleton, 1 Rice, 459. Lyle vs. Richards, 9 S. & R. 370. Stump vs. Findlay, 2 Rawle, 168. Yet, when the tenant for life conveys by an ordinary deed of bargain and sale, though he may assume to convey a fee, it works no forfeiture; for no greater estate is in fact conveyed than an estate for the life of the grantor. McKee vs. Pfoutz, 3 Dall. 489. Pendleton vs. Vandiveer, 1 Wash. 381. Rogers vs. Moore, 11 Conn. 553. Bell vs. Twilight, 2 Foster, 500. A tenant for life, unless restrained by conditions, may aliene his whole estate, or any less estate; and if he convey without limitation, he passes an estate for his own life. Jackson vs. Van Hoesen, 4 Cow. 325.—Sharswood.
[(k) ] See p. 35.
[(l) ] Co. Litt. 41.
[(m) ] Co. Litt. 53.
[1½ ] Tenant for life cannot dig up the soil and make bricks for sale, nor use the wood for that purpose. Livingston vs. Reynolds, 2 Hill, 157.—Sharswood.
[(n) ] Ibid. 55.
[2 ] As to emblements in general, what they are, and who shall have them, see Com. Dig. Biens, G. 1, 2; Vin. Abr. Emblements and Executors, U.; Bac. Abr. Executors, H. 3; Co. Litt. 55, a., b.; Toller’s Law of Executors, book 2, ch. 4, &c.; 3 Atk. 16. Emblements are corn, peas, beans, tares, hemp, flax, and annual roots, as parsnips, carrots, and turnips. Id. ibid. And if a lessee for life of a hop-ground dies in August before severance of hops, the executor shall have them, though on ancient roots; for all these are produced by great manurance and industry. Cro. Car. 515. Co. Litt. 55, b.; note 1. Toller, b. 2, ch. 4. But all other roots and trees not annual, and fruits on the trees, though ripe, and grass growing, though ready to be cut into hay, and though improved by nature and the labour and industry of the occupier, by trenching or sowing hay-seed, are not emblements, but belong to the remainderman or heir. Com. Dig. Biens, G. 1. Toller, b. 2, ch. 4.
With respect to who is entitled to emblements, lord Ellenborough observed, in 8 East, 343, that the distinction between the heir and devisee in this respect is capricious enough. In the testator himself, the standing corn, though part of the realty, subsists for some purposes as a chattel-interest, which goes on his death to his executors, as against the heir; though, as against the executors, it goes to the devisee of the land, who is in the place of the heir, unless otherwise directed. This is founded upon a presumed intention of the devisor in favour of the devisee. But this again may be rebutted by words which show an intent that the executor shall have it. A devise to the executor of all the testator’s stock on the farm entitles him to the crops, in opposition to the devisee of the estate. 6 East, 604, note d. 8 East, 339. Com. Dig. Biens, G. 2. Every one who has an uncertain estate or interest, if his estate determines by the act of God, before severance of the corn, shall have the emblements, or they go to his executor or administrator. As, if a tenant for life sow the land, and die before severance, or tenant pur auter vie and cestuy que vie dies, or tenant for years if he so long live, or the lessee of tenant for life, or if a lessee strictly at will die, or if tenant by statute merchant, &c. sow, and be satisfied by a casual and sudden profit before severance. Co. Litt. 55, b. Com. Dig. Biens, G. 2. However, a lessee of tenant for life is bound to take notice of the time of the death, and if, in ignorance of it, he afterwards sow corn, he is not entitled to it. Bro. Abr. Notice, pl. 15. Vin. Abr. Notice, A. 2, pl. 5.
It has been held that if a devise be to A. for life, remainder to B., and before severance A. dies, B. shall have them, (Cro. Eliz. 61. Win. 51. Godb. 159,) and that if a devise be to A. for life, who dies before severance, he in reversion shall have them, (Cro. Eliz. 61;) but the contrary is established, and that the executor of the tenant for life shall have them, it being for the benefit of the kingdom, which is interested in the continual produce of corn and will not suffer them to go to the remainderman. 3 Atk. 16.
If the particular estate determine by the act of another, as if lessee at will sow the land, and before the severance the lessor determines his will, the lessee shall have the emblement. Co. Litt. 55.
But if a person have a certain interest, and knows the determination of it, he shall not have the emblements at the end of his term, unless he can establish a right to an away-going crop, as sometimes exists by custom or local usage; as if lessee for years sow his land, and before the corn be severed his term ends, the lessor, or he in reversion, shall have the corn. Co. Litt. 55. And if an out-going tenant sow corn even under a bona fide supposition that he is entitled to an away-going crop, when he is not so, and after the expiration of his tenancy cut and carry away the corn, the landlord may support trover for the same. 1 Price Rep. 53.
So if a person determine his estate by his own act, he shall not have emblements; as if lessee at will sow, and afterwards determines the will before severance. Co. Litt. 55, b. 5 Co. 116. Cro. Eliz. 461. So if an estate determine by forfeiture for condition broken. Co. Lit. 55, b. 1 Roll. 726, l. 33, 36. Com. Dig. Biens, G. 2.—Chitty.
[(o) ]Fewl. l. 2, t. 28.
[(p) ] 5 Rep. 116.
[(q) ] Co. Litt. 55.
[(r) ] Co. Litt. 55, 56. 1 Roll. Abr. 728.
[3 ] The commentator has lord Coke’s authority for ranking annual roots among emblements, and this appears to be the better opinion; but both Godolphin (pt. 2, c. 14, s. 1) and Wentworth (p. 152) assert that carrots, turnips, and other annual roots belong to the heir, because the executor is not at liberty to break the soil to reach them. In Evans vs. Roberts, (5 B. & C. 832,) Bayley, J., founded his judgment on the assumption that potatoes were emblements. Artichokes, it is clear, not being a strictly annual produce, are not emblements. Went. Off. Ex. 63.
Emblements are such crops as in the ordinary course of things return the labour and expense bestowed upon them strictly within the year. Thus, if the tenant plant hops, he will not be entitled to the first crop unless produced within the year; but, as hops will not bear without labour annually bestowed in manuring, making of hills, and setting of poles, the tenant is entitled to the year’s crop, although it proceed from ancient roots. Cro. Car. 515. 2 Freem. 210. Co. Litt. 55, 56. On the other hand, as fruit-trees will bear although no labour is bestowed upon them within the year, the tenant is not entitled to the fruits as emblements. And where the tenant had sown clover with barley in the spring, according to a practice by which the benefit of the clover would not be realized within the year, it was held that he could not claim any advantage that accrued after the expiration of a year from the time of sowing. 2 Nev. & M. 725. 5 B. & Ad. 129.
Corn, peas, beans, tares, hemp, flax, saffron, melons, and, according to the better opinion, annual roots, such as potatoes, &c., are emblements. Grass is not, even when it arises from seed, (Com. Dig. Biens, G. 1;) but the artificial grasses, such as sainfoin, clover, &c., which are annually renewed like any other crop, seem to fall within the description of emblements. 2 Nev. & M. 725. Burn, Ecc. L. 297. Lord Coke, in his commentary on the statute of Merton, says, “Blada signifieth corn or grain while it groweth, or grain while it is in herba, dum seges in herba, but it is taken for all manner of corn or grain, or things annual, coming by the industry of man, as hemp, flax, &c.” 2 Inst. 81. The word “emblement” comes from embler or emblaver, to sow with corn; whence the old law-phrase to emble land, or sow it for an annual crop.
Emblements are considered for most purposes as goods and chattels: they go, as has been seen, to the executor. They may be taken in execution under a fieri facias, and contracts relating to them have been held not to be contracts relating to any interest in land within the statute of frauds, (29 Car. II. c. 3, s. 4,) in contradistinction to contracts relating to growing grass, crops of fruit, &c. 2 Brod. & B. 368. 5 B. & Cr. 829. 8 Dowl. & Ry. 611. 4 Nev. & W. 343. A dictum in Fitzh. Abr. pl. 59, that at common law emblements cannot be granted without deed, if not overruled by these cases, must be rested on the ground that a grant, as distinguished from a contract for sale, includes the right of ingress, egress, and regress, which is an easement. The landlord could not distrein emblements until that power was given him by the statute 11 Geo. II. c. 19. 1 Roll. Abr. 666. 8 Taunt. 431, 742.—Sweet.
[(s) ] Co. Litt. 55.
[(t) ] Cro. Eliz. 461. 1 Roll. Abr. 727.
[4 ] The law relating to emblements has been very recently much modified in England; for it has been enacted by 14 & 15 Vict. c. 25, s. 1, that on the determination of leases or tenancies under landlords holding as tenants for life or for any uncertain interests, instead of claims to emblements, the tenants shall hold until the expiration of the current year, paying to the succeeding landlord a fair proportion of the rent.—Stewart.
[(u) ] 10 Rep. 127.
[(v) ] Stat. 11 Geo. II. c. 19, 15.
[5 ] At common law, if tenant in fee die after sunset and before midnight of the last day when the rent becomes due, it shall go to the heir, and not to the executor; for the rent is not due till the last instant of the day. 1 Saund. 287, id. note 17. 2 Mad. 268.
Where the mischief recited in the act of 11 Geo. II. c. 19 does not apply, and the lease does not determine on the death of the tenant for life, the case is not affected by it; and therefore if a tenant for life, with a leasing power, demises the premises pursuant to such power, and dies before the rent becomes due, as the rent and the means of recovering it will go to the remainderman or reversioner, (see 3 Maule & S. 382,) and will not be lost, the case is not within the act, and the executors of the tenant for life are not entitled to any proportion of the accruing rent. 1 P. Wms. 177. 2 Mad. 268. But if the lease or demise of the tenant for life is not within the power and determines on his death, this is a case of apportionment under the statute. 1 Swanst. 337, and the learned note of the reporter, 357. It seems that the executors of tenants in tail, who had made leases void as against the remainderman, and die without issue, are within the equity of the statute. Ambl. 198. 2 Bro. C. C. 639. 8 Ves. 308. At all events, if the remainderman has received the whole rent, it seems settled he shall account in equity to the executor of the tenant in tail, (id. ibid.;) and which doctrine seems to apply to the successor of a parson who has received a composition for tithe jointly accruing in the lifetime of the deceased incumbent. 8 Ves. Jr. 308. 10 East, 334. It is laid down in 10 Co. 128, and Christian’s edition, that this act is confined to the death of the landlord, who holds for his own life; and that therefore it seems if tenant pur auter vie leases, and the cestuy que vie dies, the lessee is not compellable to pay any rent from the last day of payment before the death of cestuy que vie. In 3 Taunt. 331, Mansfield. C. J., expresses his doubts, (see 2 Saund. 288, D.;) and it should seem that the case is within the act. See other cases as to apportionment, 1 P. Wms. 392. 3 Atk. 260, 583. 2 Ves. 672. Amb. 198, 279. 2 Bro. 659. 3 Bro. 99. 2 P. Wms. 502. There is no apportionment of an annuity, unless expressly provided for, (1 Swanst. 349, in notes;) but if there has been judgment on an annuity-bond standing as a security for future payments of an annuity, the court will give plaintiff leave to take out execution for a proportion of a quarter, up to grantee’s death, (2 Bla. R. 1017. 11 Ves. Jr. 361;) and in equity the maintenance of an infant is always apportioned. Id. ibid. 1 Swanst. 350. There is no apportionment of dividends in the case of tenant for life; but there is of interest of mortgages, as that is perpetually accruing. 2 P. Wms. 76. 1 Swanst. 349, in notes. See 1 R. S. 747.—Chitty.
It was doubted whether the statute of Geo. II. applied strictly to tenants for life, or whether persons who were exposed to a similar hardship could claim the benefit of it. Thus, it was frequently questioned whether the statute extended to tenants in tail after possibility of issue extinct. These doubts are now set at rest by the statute 4 W. IV. c. 22, s. 1, which, after reciting that doubts have been entertained whether the provisions of the statute of Geo. II. apply to every case in which the interests of tenants determine on the death of the person by whom such interests have been created, enacts that rents reserved on leases which shall determine on the death of the person making them shall be considered to be within the meaning of the act, although such person was not strictly tenant for life.—Stewart.
[(w) ] Litt. 32.
[(x) ] Roll. Rep. 184. 11 Rep. 80.
[(y) ] Co. Litt. 28.
[(z) ] Litt. 34. Co. Litt. 28.
[(a) ] Co. Litt. 27.
[6 ] See post, chapter xviii. of this book, p. 283. All authorities agree that tenant in tail after possibility of issue extinct is dispunishable for waste, (Doctor and Student, Dial. 2, c. 1;) but in Herlakenden’s case, (4 Rep. 63,) C. J. Wray is reported to have said that, although tenant in tail after possibility, &c. cannot be punished for waste in cutting down trees upon the land he holds as such tenant, yet he cannot have the absolute interest in the trees, and, if he sells them, cannot retain the price. This dictum is noticed by Mr. Hargrave in his 2d note to Co. Litt. 27, b., and is countenanced by another dictum in Abraham vs. Bubb, 2 Freeman, 53. Mr. Christian, too, in his annotation upon the passage of the text, considers it as settled law that, if a tenant in tail after possibility, &c. cuts down trees, they do not become his property, but will belong to the party who has the first estate of inheritance. In opposition, however, to the doctrine imputed to C. J. Wray and the obiter dictum in Abraham vs. Bubb, it was distinctly resolved by the whole court of King’s Bench (consisting of Coke, Crooke, Doddridge, and Haughton,) in the case of Bowles vs. Bertee, 1 Rolle’s Rep. 184, S. C., 11 Rep. 84, that a tenant after possibility has the whole property in trees which he either causes to be cut down, or which are blown down, on the estate. And this seems to be now firmly settled by the case of Williams vs. Williams. When that case was before lord chancellor Eldon, his lordship (as reported in 15 Ves. 427) intimated that he could not imagine how it was doubted that the tenant, being dispunishable, had not, as a consequence, the property in the trees; that it was singular there should be an argument raised that such a tenant should be restrained from committing malicious waste by cutting ornamental timber, (Garth vs. Cotton, 1 Dick. 209,) if it was understood to be the law that he could not commit waste of any kind. Attorney-General vs. Duke of Marlborough, 3 Mad. 539. However, as all the previous cases in which tenant in tail after possibility of issue extinct had been determined to be dispunishable of waste were cases in which the tenant had once been tenant in tail with the other donee in possession, and in the case of Williams vs. Williams the tenant claimed in remainder after the death of the joint donee, lord Eldon thought it advisable, before he made a final decree, to direct a case to the court of King’s Bench, not describing the claimant as tenant in tail after possibility of issue extinct, but stating the limitations of the settlement under which the claim was made. The case was accordingly argued at law, and a certificate returned that the claimant was tenant in tail after possibility of issue extinct; was unimpeachable of waste upon the estate comprised in the settlement; and, having cut timber thereon, was entitled to the timber so cut as her own property. 12 East, 221.
A tenant for life without impeachment of waste, and a tenant in tail after possibility of issue extinct, seem to stand upon precisely the same footing in regard to all questions of waste, (Attorney-General vs. Duke of Marlborough, 3 Mad. 539;) and a tenant for life dispunishable for waste is clearly not compellable to pursue such a course of management of the timber upon the estate as a tenant in fee might think most advantageous. Whatever trees are fit for the purpose of timber he may cut down, though they may be still in an improving state. Smythe vs. Smythe, 2 Swanst. 252. Brydges vs. Stevens, 2 Swanst. 152, n. Coffin vs. Coffin, Jacob’s Rep. 72. No tenant for life, however, of any description, although not subject to impeachment for waste, must cut down trees planted for ornament or shelter to a mansion-house, or saplings not fit to be felled as timber; for this would not be a fairly beneficial exercise of the license given to him, but a malicious and fraudulent injury to the remainderman. Chamberlayne vs. Dammer, 2 Br. 549. Cholmeley vs. Paxton, 3 Bing. 212. Lord Tamworth vs. Lord Ferrers, 6 Ves. 420. In this respect, the claim which might perhaps be successfully asserted in a court of law, as to the right of felling any timber whatsoever, is controlled in courts of equity, (Marquis of Downshire vs. Lady Sandys, 6 Ves. 114. Lord Bernard’s case, Prec. in Cha. 455,) and that even on the application of a mere tenant for life in remainder. Davies vs. Leo, 6 Ves. 787. And not only wanton malice, but fraud and collusion, by which the legal remedies against waste may be evaded, will give to courts of equity a jurisdiction over such cases, often beyond, and even contrary to, the rules of law. Garth vs. Cotton, 3 Atk. 755.
A tenant for life without impeachment of waste has no interest in the timber on the estate whilst it is standing; nor can he convey any interest in such growing timber to another. Cholmeley vs. Paxton, 3 Bing. 211. If, in execution of a power, he should sell the estate, with the timber growing thereon, he cannot retain for his own absolute use that part of the purchase-money which was the consideration for the timber; though before he sold the estate he might, it seems, have cut down every sizable tree and put the produce into his pocket. Doran vs. Wiltshire, 3 Swanst. 701. And the peculiar privileges which a tenant for life after possibility of issue extinct is allowed to enjoy, because the inheritance was once in him, are personal privileges: if he grants over his estate to another, his grantee will be bare tenant for life. 2 Inst. 302. George Ap Rice’s case, 3 Leon. 241.—Chitty.
[(b) ] Co. Litt. 28.
[(c) ] Litt. 35, 52.
[(d) ] C. 1, 3.
[(e) ] Crag. l. 2, c. 19, 4.
[7 ] I should rather think, with Mr. Wooddesson, that this estate took its name from its peculiarity to England, and that it was afterwards introduced into Scotland and Ireland. 2 Woodd. 18. Tenant by the curtesy of England perhaps originally signified nothing more than tenant by the courts of England, as in Latin he is called tenens per legem Angliæ. See stat. pro tenentibus per legem Angliæ. App. to Ruff. 29.—Chitty.
[(f) ] Litt. 90. Co. Litt. 30, 67.
[(g) ]Put. 11 H. III. m. 30 in 2 Bac. Abr. 659.
[(h) ]Grand Coustum. c. 119.
[(i) ] Lindenbrog. LL. Alman. t. 92.
[(k) ] Wright, 294.
[(l) ] F. N. B. 143.
[(m) ] Co. Litt. 30.
[8 ] 2 Saund. 45, n. n.(5.) Courts of equity, however, allow curtesy of trusts and of other interests, which, although mere rights in law, are deemed estates in equity. 1 Atk. 603. 1 P. Wms. 108. Lord Redesdale, on 2 Sch. & Lef. 388, suggests this reason for the distinction between dower and this claim,—viz., that parties had been acting on this supposition, that the creation of trust-estates would bar dower, and that it was necessary for the security of purchasers, mortgagees, and other persons taking the legal estate, to depart in cases of dower from the general principle of courts of equity, which is, in acting upon trusts to follow the law, but it was not necessary in cases of tenancy by the curtesy, because no such practice had prevailed.—Chitty.
[9 ] Entry is not always necessary to an actual seisin or seisin in deed; for, if the land be in lease for years, curtesy may be without entry or even receipt of rent, the possession of the lessee being the possession of the husband and wife. Co. Litt. 29, a. n. 3. 3 Atk. 469. But if the lands were not let, and the wife died before entry, there could be no curtesy. Co. Litt. 29.—Chitty.
[10 ] A man will not be entitled to tenancy by the curtesy of, nor a woman to dower out of, a reversion or remainder expectant upon an estate of freehold; but upon a reversion expectant upon an estate for years, both these rights (of dower and of curtesy) accrue, (Stoughton vs. Leigh, 1 Taunt. 410;) for the possession of the tenant for years constitutes a legal seisin of the freehold in reversion. De Gray vs. Richardson, 3 Atk. 470. Goodtitle vs. Newman, 3 Wils. 521.—Chitty.
[(n) ] Co. Litt. 29.
[(o) ] Co. Litt. 30. Plowd. 263.
[11 ] The words “actual seisin or possession of the lands” are satisfied by the possession of a tenant for years; for if the land is demised for a term of years, his possession is the possession of the wife, and there may be curtesy, though she dies before entry or even receipt of rent. Co. Litt. 29. Harg. n. 162. But if the lands were not let, and descended on the wife, who died before entry, there could be no curtesy. Co. Litt. 29.
With respect to the case of the advowson, if the author means, as his words seem to import, that a husband shall be tenant by the curtesy of it under the circumstances stated, because from the nature of the hereditament it is impossible to have actual seisin of it at any time, he seems not to be warranted by the law or his authority. Presentation gives seisin of an advowson; and all that lord Coke says is, that he shall be tenant, even though there has been no vacancy, because he could by no industry attain to any other seisin; that is, he could not bring about a vacancy at any time that he pleased.
The position which follows, respecting the husband of an idiot, has been questioned. Lord Coke’s argument, as well as that in Plowden, is that the titles of the tenant by curtesy and of the king begin at one instant, (the office which finds her an idiot having relation back to her first seisin,) and then that the title of the king shall be preferred. Upon this it has been remarked that there is not any such concourse of titles; the husband’s title not being consummate till the wife’s death, when the king’s title determines. Co. Litt. 30. Harg. n. 175. The argument in the text, that an idiot can never be rightfully seised of lands, is directly at variance with that just stated, which assumes the seisin of the idiot. Lord Coke reckons idiots among those who have power to purchase and retain lands or tenements, (Co. Litt. 3, b.,) or to be grantees of a copyhold estate. Co. Cop. s. 35. Indeed, the old writ de idiota inquirendo et examinando proceeded upon the same assumption, and the king took the custody of the lands as of lands of which the idiot had been seised. F. N. B. 232.
But the same conclusion may be rested upon the principle that there can have been no valid marriage with an idiot—a principle which it is the more remarkable that the author should have overlooked here, as only three pages later he makes use of it to exclude the wife of an idiot from dower.
In vol. 1, p. 302, an idiot is defined to be one who hath had no understanding from his nativity. If that definition be correct, there can be no question but that such a person could never contract a valid marriage. But I imagine that a person born sane might, from external injury, or internal disease gradually aggravated, be reduced to idiotcy, as opposed to lunacy or madness, if such a case would come within the legal notion of idiocy; still, a marriage contracted while the person was sane, and seisin then had, with issue, ought on principle to entitle the husband to curtesy; because in such a case no one of the principles of exclusion would apply: the husband’s title would be prior to the king’s, there would have been sufficient seisin, and the marriage would not have been invalid.—Coleridge.
In Connecticut, Pennsylvania, and some other States, actual seisin is not necessary in any case to entitle the husband to curtesy. It is sufficient that the wife had title and a potential seisin or right of seisin; that is, the right to demand and recover the immediate possession thereof. Bush vs. Bradley, 4 Day, 298. Kline vs. Beebe, 6 Conn. 494. Stoolfors vs. Jenkins, 8 S. & R. 175. Day vs. Cochran, 24 Miss. 261. The rule requiring that the wife should have actual seisin is not applied in this country to wild and uncultivated lands. When she is owner of such lands, she is deemed in possession, so as to entitle her husband to become tenant by the curtesy, though there has been no actual possession by either of them during the coverture, (Jackson vs. Sellick, 8 Johns. 262. Davis vs. Mason, 1 Peters, S. C. 506. Guion vs. Anderson, 8 Humph. 298. Wells vs. Thompson, 13 Ala. 793,) except in Kentucky. Neely vs. Butler, 10 B. Mon. 48. And it seems that the rule requiring actual seisin applies only to cases in which the seisin is not complete until entry is made; as when the estate descends or is devised to the wife, and not when it is acquired by deed, and is transferred into possession by the statute of uses. Jackson vs. Johnson, 5 Cowen, 74. It is not necessary that there should be seisin and issue at the same time; and therefore, if the wife become seised of lands during the coverture, and then be disseised and then have issue, the husband shall be tenant by the curtesy of those lands. So if the wife become seised after issue born, though the issue die before her seisin. Jackson vs. Johnson, 5 Cowen, 74. A mere naked seisin by the wife as trustee will not suffice to make the husband tenant by the curtesy, though she has the beneficial interest in the reversion. Therefore, where a woman held a ground-rent in fee in trust for another during his life, and she afterwards married and died, and then the cestuy que trust died, the husband was held not to be entitled to the rent as such tenant. Chew vs. Southwark, 5 Rawle, 160. A husband is not entitled to an estate by the curtesy out of land devised to a trustee for the sole and separate use of the wife in fee-simple. Cochran vs. O’Hern, 4 W. & S. 95. Stokes vs. McKibbin, 1 Harris, 267. A husband who has conveyed land to another in trust for his wife is not entitled on her death to a tenancy by the curtesy in the trust-estate. Rigler vs. Cloud, 2 Harris, 361.—Sharswood.
[(p) ] Dyer, 25. 1 Rep. 34.
[(q) ] Co. Litt. 29.
[(r) ] Ibid. 30.
[(s) ] Litt. 56.
[(t) ] Co. Litt. 29.
[12 ] This is not stated with our author’s usual precision. The issue, in the case put, might be heir to the lands, though he could not take as heir to his mother, but as heir to his ancestor, who was last actually seised. See post, chapter 14 of this book, pp. 209, 227; see also 1 Inst. 11, b.—Chitty.
[(u) ] Co. Litt. 40.
[(w) ] Ibid. 29.
[(x) ] Ibid. 30.
[(y) ] Ibid.
[13 ] It may be necessary to observe, if the child which the husband has by his wife be capable, and have a mere possibility of inheriting, the husband shall be tenant by the curtesy. Thus, suppose a woman seised in fee of lands marry and have a son, after which the husband dies, and she marries again and has a child by the second husband, here the husband shall be tenant by the curtesy, although there is but a mere possibility that the child which the wife had by her second husband should ever inherit the estate, the child by her first husband being alive. Prest. Est. 516.—Archbold.
The Real Property Commissioners, in their first Report, proposed to make some alterations in the law of curtesy, the principal of which were to abolish the rule that the issue must be born alive, and to restrict the estate to an undivided moiety of the lands; and a bill was brought in, in the session of 1831, to carry these recommendations into effect. It was, however, suffered to drop; and it may therefore be considered that the law on this subject will not be unsettled.—Stewart.
[14 ] But of gavelkind lands a woman is endowed of a moiety while she remains chaste and unmarried. Co. Litt. 33, b. Rob. Gavelk. 159. And of borough-English lands the widow is entitled for her dower to the whole of her husband’s lands held by that tenure. But of copyhold lands a woman is endowed only of such lands whereof her husband was seised at the time of his death. Cowp. 481. And her title to dower or free-bench is governed by the custom: according to its authority she may take a moiety, or three parts, or the whole, or even less than a third; but it must be found precisely as it is pleaded. Boraston vs. Hay, Cro. Eliz. 15.—Chitty.
[(z) ] Litt. 36.
[(a) ] Wilk. 75.
[(b) ] Somner. Gavelk. 51. Co. Litt. 33. Bro. Dower, 70.
[15 ] The distinction between free-bench and dower is, that free-bench is a widow’s estate in such lands as her husband dies seised of; whereas dower is the estate of the widow in all lands of which the husband was seised during the coverture. Godwin vs. Winsmore, 2 Atk. 525; see also Carth. 275. 2 Ves. 633, 638. Cowp. 481; and Gilb. Ten., ed Watkins, n. 164. The custom of free-bench prevails in the manors of East and West Enborne, and Chadleworth, in the county of Berks; at Torr, in Devonshire; Kilmersdon, in Somersetshire; and other places in the west of England.—Chitty.
[(c) ] Wright, 192.
[(d) ] Crag. l. 2, t. 22, 9.
[(e) ] Ibid.
[(f) ] Mod. Un. Hist. xxxii. 91.
[(g) ] Bract. l. 2, c. 39. Co. Litt. 30.
[16 ] The lawfulness, and even the fact, of a marriage, it has been said, can be established in no other way but by the bishop’s certificate. Robins vs. Crutchley, 2 Wils. 125. But when the marriage has not been had within any of our bishop’s dioceses, or where, from any particular circumstances, the question seems not proper to be tried by the bishop’s certificate, there, in the language of chief-justice Eyre, “the common law, out of its own inexhaustible fountain of justice, must derive another mode of trial; and that mode is the trial by the country.” Ilderton vs. Ilderton, 2 H. Bla. 156. The same doctrine, founded on obvious good sense, had been previously laid down in the case of The Protector vs. Ashfield, Hardr. 62.—Chitty.
[(h) ] Bract. l. 2, c. 39, 4.
[(i) ] Co. Litt. 32.
[(k) ] Yet, among the ancient Goths, an adulteress was punished by the loss of her dotalitii et trientis ex bonis mobilibis viri. Stiernh. l. 3, c. 2.
[(l) ] 13 Edw. I. c. 34.
[17 ] And in a case where John de Camoys had assigned his wife, by deed, to Sir William Paynel, knight, which lord Coke calls concessio mirabilis et inaudita, it was decided in parliament, a few years after the statute was enacted, notwithstanding the purgation of the adultery in the spiritual court, that the wife was not entitled to dower. 2 Inst. 435. This is an indictable offence, being a great public misdemeanour.—Chitty.
[(m) ] Co. Litt. 31.
[(n) ] P. C. b. 3, c. 3.
[(o) ] C. 110.
[(p) ] 5 & 6 Edw. VI. c. 11.
[(q) ] Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26. 15 & 16 Geo. II. c. 28.
[18 ] This statement is too general. Alien women, whose marriage with Englishmen has not taken place with license from the king, are not capable of acquiring dower, for the reason assigned by our author. But, in consequence of a petition from the commons, an act of parliament was made in the 8th year of the reign of Henry V., (and which, though it is not printed amongst the statutes, is preserved in the 4th volume of Rot. Parl. pp. 128, 130,) by which all alien women who from thenceforth should be married to Englishmen, by license from the king, are enabled to have dower after their husband’s death, in the same manner as Englishwomen. And if an alien woman be naturalized, she thereby becomes entitled to dower out of all lands whereof her husband was seised during the coverture, (see vol. 1, p. 374;) but, if she be only made a denizen, she will have no claim to dower out of lands which he aliened before her denization. Menvil’s case, 13 Rep. 23.—Chitty.
[(r) ] Co. Litt. 31.
[(s) ] Litt. 36.
[(t) ]L. 2, c. 9, 3.
[(u) ] Litt. 36.
[19 ] The word “sole” should be inserted before “seised” in this description, because, if the husband is seised jointly with another person, that other person’s interest, being derived from the original grant to the husband and herself, is prior to the wife’s claim: and therefore she shall not be endowed. Litt. s. 45. Co. Litt. 37. The principle of this rule is founded on the nature of the interest of joint-tenants, (see post, 182,) from which survivorship is a necessary consequence, and not an arbitrary rule of law. During the life of the husband, his joint-tenant’s interest pervaded the whole of the land: now, the tenant in dower would come in as tenant in common, and be entitled to hold the third of one moiety by a distinct title. The survivor’s interest would therefore be changed; he would be obliged to recede entirely from that third in which before he had a joint-interest, and he would be put to this change by one whose title was posterior to his own. The maxim of law is that jus accrescendi prefertur oneribus.—Coleridge.
Yet it would not be accurate to say “sole seised;” for a tenant in common is not sole seised: yet his wife shall be endowed. We cannot expect the statement of a general rule always to express all the exceptional or anomalous cases which may exist. In truth, however, joint-tenants make together but one tenant: for this reason, the survivor may plead the feoffment by which the joint-tenancy was created as made to himself alone, without naming his companion. Co. Litt. 185, a.—Sharswood.
But although at the death of her husband she has a right to the third part of his estates in dower, yet she is not entitled to emblements. Dy. 316. If the heir improve the land by building, &c. or impair the value of it, before assignment, she shall be endowed according to the value at the time of the assignment. Co. Litt. 32, a. Sed secus if feoffee improve the land, as in this case she shall be endowed, not according to the value at the time of the assignment, but according to the value at the time of the feoffment. 17 H. 3. Dower, 192. 31 E. 1. Vouch. 288.—Archbold.
[(v) ] Ibid. 53.
[(w) ] Co. Litt. 31.
[(x) ] Cro. Jac. 615. 2 Rep. 67. Co. Litt. 31.
[(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 seised of an estate in fee by survivorship, in consequence of which seisin his widow had a verdict for her dower. Cro. Eliz. 503.
[20 ] The student may reasonably be puzzled to distinguish between the “transitory instant” of one example and the “single moment” of the other. In fact, the space of time is no essential ingredient in the case: it is the interest of the husband. In the first example, the cognisee of the fine takes absolutely no interest at all by the grant: he is, to use the expression of the text, (p. 364,) a mere instrument or conduit-pipe to carry an estate to the cognisor, or, it may be, to a stranger; he is simply to perform a contract made by himself with the cognisor, or between the cognisor and a stranger. Upon this ground it is, I conceive, that the wife would not be dowable. In the second example, the land is supposed to be abiding in the husband as his own.—Coleridge.
See Ballard vs. Bowers, 10 N. Hamp. 500. Stanwood vs. Dunning, 2 Shep. 290. Randolph vs. Doss, 3 Howard. (Miss.) 205.
In the United States, the rule generally adopted is that a wife is dowable of an equity of redemption, and, indeed, of a trust-estate generally. The anomalous distinction of the English courts between dower and curtesy in this respect has been repudiated. Shoemaker vs. Walker, 2 S. & R. 554. Coles vs. Coles, 15 Johns. 319. Fish vs. Fish, 1 Conn. 559. McMahan vs. Kimball, 2 Blackf. 1. Reed vs. Morrison, 12 S. & R. 18. Lewis vs. James, 8 Humph. 537. The truth is that the doctrine of seisin is little known here, because it is inconsistent with the genius and spirit of our laws, which give a free scope to the alienation and transfer of property, untrammelled with the feudal doctrine of in vestiture and its concomitants; and with us seisin is, for many substantial purposes, the beneficial interest and right of ownership. Where the husband’s fee, however, is determined by recovery, condition, or collateral limitation, the wife’s dower determines with it. The case of a tenant in tail—in which the wife is endowed notwithstanding the estate-tail is determined by the death of the tenant in tail without issue—is an exception arising from an equitable construction of the statute de donis; and the cases of dower of estates determinable by executory devise and springing use owe their existence to the circumstance that these limitations are not governed by common-law principles. Preston on Abst., 3 vol. p. 372. Before the statute of wills there was no executory devise, and before the statute of uses there was no springing use. Like estates-tail, which were created by the statute de donis, and of which there is constantly dower, though tenant in tail claims per formam doni, it was the benign temper of the judges who moulded the limitations of the estate introduced by them, whether original or derivative, so as to relax the severer principles of the common law; and, among other things, to preserve curtesy and dower from being barred by determinations of the original estate, which could not be prevented. Gibson, C. J., in Evans vs. Evans, 9 Barr, 190. Where the grantor of an estate on a condition enters for condition broken, the dower of the wife of the grantee falls with the estate of the husband. Beardslee vs. Beardslee, 5 Barb. S. C. 324.—Sharswood.
[21 ] 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 savour of the realty. Buckeridge vs. Ingram, 2 Ves. Jr. 664.—Chitty.
[(z) ] Co. Litt. 31. 3 Lev. 401.
[(a) ] Co. Litt. 32. 1 Jon. 315.
[(b) ] 4 Rep. 22.
[(c) ] Co. Litt. 32.
[22 ] 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 seised 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.—Chitty.
It is now provided in England, by the statute 3 & 4 W. IV. c. 105, that 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, 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 to dower out of the same land; and that when a husband shall have been entitled to a right of entry or action in any land, and his widow would be entitled to 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; also that widows shall not be entitled to dower out of any land which shall have been absolutely disposed of by their husbands in their lifetime or by their wills.—Stewart.
[(d) ] Ibid. 48, 49.
[23 ] The dower de la plus belle was shortly this. If a man holding lands in chivalry and in socage died leaving a widow and an heir under fourteen, the lord was entitled to the custody of the lands holden in chivalry, and the widow, as mother, of the lands in socage: but, as she would have to account for the profits of the lands so held by her, there was no provision for herself by way of dower. If then she brought a writ of dower against the lord to be endowed from the lands holden by him, he might plead all these facts, and pray that she might be adjudged to endow herself of the fairest of the lands held by her as guardian. And if judgment to that effect was given, the chivalry lands during the wardship were quit of dower, and she, in the presence of her neighbours, (perhaps a jury,) endowed herself by metes and bounds of the fairest part of the socage lands, to the value of a third part of the whole of both tenements.
This dower may be considered as another of the feudal hardships, which relieved the lord in chivalry of his share of a burthen commonly incident to all lands, and threw it unfairly upon the socage lands,—in other words, upon the ward.—Coleridge.
[(e) ] Litt. 37.
[(f) ] Ibid. 39.
[(g) ] Ibid. 40.
[(h) ] Bracton, l. 2, c. 39, 4.
[(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.ad 1001. Introd. to great charter, edit. Oxon. page iv.
[(k) ]L. 6, c. 1 and 2.
[(l) ]Gr. Coustum. c. 101.
[(m) ] Bract. l. 2, c. 39, 6.
[(n) ]De questu suo, (Glanv. ib.)—de terris acquisitis et acquirendis. Bract. ib.
[(o) ] Glanv. c. 2.
[(p) ] When special endowments were made ad ostium ecclesiæ, the husband, after affiance made and troth plighted, used to declare with what specific lauds 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. l. 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,” &c. 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 worldly 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. 26, and will be further 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) ]ad 1216, c. 7, edit. Oxon.
[(r) ]Assignetur autem ei pro dote sua tertia pars totius terræ mariti sui quæ sua fuil in vita sua, nisi de minori d[Editor: illegible character]tata fuerit ad ostium ecclesiæ. C. 7, ibid.
[(s) ] Bract. ubi supra. Britton, c. 101, 102. Flet. l. 5, c. 23, 11, 12.
[(t) ] P. 7 Hen. IV. 13, 14.
[(u) ] 39. F. N. B. 150.
[(w) ] 141.
[24 ] The dowers ad ostium ecclesiæ and ex assensu patris have long since fallen into total disuse, and were lately abolished by the 3 & 4 W. IV. c. 105, 13.—Stewart.
[(x) ] Mirr. c. 1, 3.
[(y) ]Ubi supra.
[(z) ] Cap. 7.
[(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.
[(c) ] Ibid.
[(d) ] F. N. B. 148. Finch, L. 314. Stat. Westm. 2. 13 Edw. I. c. 7.
[(e) ] Co. Litt. 32.
[25 ] 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.—Chitty.
[(f) ] Co. Litt. 39.
[(g) ] 6 Edw. I. c. 7.
[26 ] “The mischief before the making of the 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 alienating for her own life; for such an estate wrought no wrong. Ibid.—Chitty.
[(h) ] Pig. of Recov. 66.
[27 ] In some States dower is barred by a sale on execution for the debts of the husband. Davidson vs. Frew, 3 Deo. 3. Gardiner vs. Miles, 5 Gill. 94. Reed vs. Morrison, 12 S. & R. 18. London vs. London, 1 Humph. 1. A sale of land under a testamentary power for the payment of debts discharges the land from the dower of the testator’s widow. Mitchell vs. Mitchell, 8 Barr, 126. An assignment in insolvency by a debtor under a compulsory process, and a conveyance by his trustee, do not divest his wife’s right of dower, (Eberle vs. Fisher, 1 Harris, 326;) nor a voluntary assignment in trust to pay debts, and the subsequent sale and conveyance by his assignees. Helfrich vs. Obermyer, 3 Harris, 113.
Where a devise or bequest to the widow in lieu of dower is accepted by her, it is a good bar to an action of dower; and that a devise was intended to be in lieu of dower may be inferred from the provisions of the will, as where it is inconsistent with the claim of dower; but the inconsistency must be plain. Jackson vs. Churchill, 7 Cow. 287. Allen vs. Pray, 3 Fairf. 138. Webb vs. Evans, 1 Binn. 565. Kennedy vs. Mills, 13 Wend. 553. Cauffman vs. Cauffman, 17 S. & R. 16. Whit vs. Whit, 1 Harris, 202.—Sharswood.
[(i) ] 1 Inst. 36.
[28 ] It is established doctrine now that a wife is not dowable of a trust-estate, (Godwin vs. Winsmore, 2 Atk. 526;) for dower is entirely a legal demand. Attorney-General vs. Scott, Ca. temp. Talb. 139. Yet a man may be tenant by the curtesy of his deceased wife’s trust-estate, (Watts vs. Ball, 1 P. Wms. 108,) a seemingly partial diversity, for which lord Talbot, C., said he could see no reason, but which, as he found it settled, he did not feel himself at liberty to correct. Chaplin vs. Chaplin, 3 P. Wms. 234. Upon the principle that a widow is not dowable out of lands of which her husband had not, during the coverture, legal seisin, it is held that if his estate was subject to a mortgage in fec at the time of his marriage, and remained so during the whole continuance of the coverture, his widow cannot claim dower; for a right of redemption is merely an equitable title, (Casburne vs. Scarfe, 2 Jac. & Walk. 200. Dixon vs. Saville, 1 Br. 326;) and though in such case the widow of the mortgagee would, at law, be entitled to dower out of the estate, (Nash vs. Preston, Cro. Car. 191,) the court of chancery would not allow her to take advantage of that legal right, because it is a general rule that a trust-estate is considered, in equity, as belonging to the cestui que trust, not to the trustee. Finch vs. Earl of Winchelsea, 1 P. Wms. 278. Hinton vs. Hinton, 2 Ves. Sen. 634. Noel vs. Jevon, 2 Freem. 43. We have just seen, however, that this general rule is deviated from when its operation would be to let in claims of dower, though it is enforced whenever it goes to exclude such claims. See post, chapter 10, p. 158. It is also settled that title to dower attaches only when the husband has, at some time during the marriage, been seised in possession of the entire inheritance, not expectant upon the determination of a freehold interest carved out of it and interposed before the husband’s remainder. Bates vs. Bates, 1 Lord Raym. 327. See Ante. note 20.
Upon these principles there are a variety of modes by which conveyances can, by deed before a man’s marriage, prevent title to dower from attaching upon his estate. The most approved mode is to limit the estate to such uses as the husband shall appoint, which gives him power over the whole fee; so that he may pass it to a purchaser without any fine, or the concurrence of any one else; and the purchaser, on the execution of the power, will be in from the original conveyance, and consequently paramount to the claims of the wife. But, in order to give the husband the immediate legal right to the possession and freehold and to the rents and profits, the next limitation is, in default of, or until execution of, the power of appointment, to the husband for life, with remainder to a trustee, his executors and administrators during the life of the husband; which will put the limitation over, in tail or in fee, in remainder. By the limitation to the husband for life, the legal estate will be vested in him; so that if he die without making any appointment, the inheritance will vest in his heirs, or those to whom he may devise his property, unaffected by title of dower, and without any continuing estate in the trustee.—Christian.
[(k) ] 4 Rep. 1, 2.
[29 ] 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. Mary Vernon’s case, 4 Rep. 3.—Chitty.
[30 ] Mr. Christian, in his annotation upon this passage of the text, says, “Or it may be averred to be. 4 Rep. 3. An assurance was made to a woman, to the intent it should be for her jointure, but it was not so expressed in the deed; and the opinion of the court was that it might be averred that it was for a jointure, and that such averment was traversable. Owen. 33.”
These authorities are correctly cited, but they are both antecedent to the statute of frauds, which expressly enacts that no estates or interests of freehold shall be surrendered unless by deed or note in writing; but if it were allowed to be proved by oral testimony that a provision for wife was intended as a jointure, the effect would be to allow a surrender of her freehold title to dower to be proved by parol testimony; and there have been several decisions, since the statute, that such averment is not admissible. Charles vs. Andrews, 9 Mod. 152. Tinney vs. Tinney, 3 Atk. 8. But it certainly is not necessary (in equity at least) that the provision for the wife should be stated, in express words, to be in lieu of dower, if it can be clearly collected from the contents of the instrument that such was the intention. Vizard vs. Longdale, cited in 3 Atk. 8 and in 1 Ves. Sen. 55. A court of equity will be cautious, however, as to inferring an intention that a widow should be barred of dower by another provision when that intention is not distinctly manifested. Lord Dorchester vs. Lord Effingham, Coop. 323.—Chitty.
[(l) ] These settlements, previous to marriage, seem to have been in use among the ancient Germans and their kindred nation the Gauls. Of the former Tacitus 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, l. 6, c. 18) has given us the terms of a marriage settlement among the Sauls, as nicely calculated as any modern jointure:—“Viri, quantas pecunias ab uxoribus dotis nomine acceperunt, tantas ex suis bonis, æstimatione facta, cum dotibus communicant. Hujus omnis pecuniæ conjunctim ratio habetur, fructusque servantur. Uter eorum vita superavit, ad eum pars utriusque cum fructibus superiorum temporum pervenit.” The dauphin’s commentator on Cæsar supposes that this Gaulish custom was the ground of the new regulation 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.
[31 ] As to the first requisite, I have ventured to insert two or three words (the jointure must (be limited to) take effect, &c.) in the text, because lord Coke, from whom the passage is taken, (Co. Litt. 36,) is express that it is not enough that in fact and by accident the jointure takes effect immediately on the death of the husband, as if an interposed remainderman for life should die before the husband, but that the limitation of the deed must be to the wife immediately after the husband’s death, where the estate is not joint. As to the third, though the position is true at law, yet it is now settled that a trust-estate, being equally certain and beneficial as a legal estate, is a good equitable jointure to bar dower. Hargrave’s note, 226. Co. Litt. 36. As to the fourth, lord Coke says it must either be expressed or averred to be so; and in 4 Rep. 3 it is laid down that it need not be expressed, but may be averred to be, &c.; that is, the deed being pleaded, and being silent as to its object, or stating one not inconsistent with this, this may be stated and averred supplementally to have been the object or part of the object.—Coleridge.
[(m) ] Co. Litt. 31, a. F. N. B. 150.
[(n) ] Co. Litt. 36.
[(o) ] Ibid. 37.
[32 ] Besides the method of jointures, the ingenuity of modern times devised other modes of preventing the wife from acquiring a title to dower. One of these has been most extensively employed, and is still applicable to the case of widows who were married on or before the 1st day of January, 1834, (the date fixed by the statute 3 & 4 W. IV. c. 105.) Under the old law, if an estate were conveyed simply to a man in fee-simple or in fee-tail, the title of his widow to dower, in the absence of any bar by way of jointure, immediately attached, and he could not again sell the estate discharged of this claim without the concurrence of the wife in a fine or recovery, or, since the statute abolishing these modes of assurance, in a statutory deed of disposition or release. To avoid this inconvenience, it became usual, in the conveyance of estates, to limit the lands to the purchaser for his natural life, with remainder to a trustee in trust for him during his life, in case of his life-estate becoming forfeited or determined by any means during his lifetime, with remainder to the purchaser in fee. It followed, from the construction put upon these limitations by the courts of law, that the husband during his lifetime never had an estate of inheritance in possession in the lands, and consequently the wife’s title to dower never attached. Through the medium of the statute of uses, hereafter to be explained, the purchaser was also clothed with a power of appointment, by which he could at once dispose of the fee-simple in any manner he pleased, and which effectually defeated the wife’s claim. This plan, known among conveyancers as the limitation to uses to bar dower, is still used whenever it is necessary to convey lands to a married man whose marriage took place on or before the 1st of January, 1834.
But, with regard to purchasers married since that day, this device, although sometimes employed for the purpose of obviating future questions as to the date of the marriage, is no longer necessary. For now a husband, whether he become entitled to an estate by actual conveyance or by inheritance or devise, may absolutely dispose of it either in his lifetime or by his will, or may charge or encumber it as he pleases, to the exclusion of his wife’s title to dower. He may, either at the time of taking a conveyance to himself of the estate, or at any time thereafter, and either by deed or by his will, declare that his wife shall not be entitled to dower out of his estates; or he may declare that she shall be entitled to it out of some portion only of the property. The widow’s right to dower may also, by the husband’s will, be made subject to any condition, restriction, or direction which he chooses to impose; and her right will be defeated by a devise to her of lands, or of any estate or interest therein, out of which she would otherwise be dowable, unless a contrary intention shall be declared by the will.—Kerr.