Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Eighth : Of Freeholds, not Of Inheritance
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Chapter the eighth.
We are next to difcourfe of fuch eftates of freehold, as are not of inheritance, but for life only. And, of thefe eftates for life, fome are conventional, or expreffly created by the act of the parties ; others merely legal, or created by conftruction and operation of law a. We will confider them both in their order.
I.Estates for life, expreffly created by deed or grant, (which alone are properly conventional) are where a leafe is made of lands or tenements to a man, to hold for more lives than one : in any of which cafes he is ftiled tenant for life ; only, when he holds the eftate by the life of another, he is ufually called tenant pur auter vie b. Thefe eftates for life are, like inheritances, of a feodal nature ; and were, for fome time, the higheft eftate that any man could have in a feud, which (as we have before feen c) was not in it's original hereditary. They are given or conferred by the fame feodal rites and folemnities, the fame inveftiture or livery of feifin, as fees themfelves are ; and they are held by fealty, if demanded, and fuch conventional rents and fervices as the lord or leffor, and his tenant or leffee, have agreed on.
aWright. 190.
bLitt. §. 56.
cpag. 55.
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Estates for life may be created, not only by the exprefs word before-mentioned, but alfo by a general grant, without defining or limiting any fpecifice ftate. 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 conftrued to be a fee, it fhall however be conftrued to be as large an eftate as the words of the donation will bear, and therefore an eftate for life. alfo fuch a grant at large, or a grant for term of life generally, fhall be conftrued to be an eftate for the life of the grantee e; in café the grantor hath authority to make fuch a grant : for an eftate 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 moft ftrongly againft the grantor f, unlefs in the café of the king.
Such eftates for life will, generally fpeaking, endure as long as the life for which they are granted : but there are fome eftates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an eftate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice ; in thefe, and fimilar cafes, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the refpective eftates are abfolutely determined and gone g. Yet, while they fubfift, they are reckoned eftates for life ; becaufe, the time for which they will endure being uncertain, they may by poffibility laft for life, if the contingencies upon which they are to determine do not fooner happen. And, moreover, in café an eftate be granted to a man for his life, generally, it may alfo determine by his civil death ; as if he enters into a monaftery, whereby he is dead in law h : for which reafon in conveyances the grant is ufually made “for the “term of a man's natural life ;” which can only determine by his natural death i.
dCo. Litt. 42.
fIbid. 36.
gCo. Litt. 42.3 Rep. 20.
h2 Rep. 48.
ISee Vol. I. Pag. 129.
Vol. II.         Q         The
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The incidents to an eftate for life, are principally the following ; which are applicable not only to that fpecies of tenants for life, which are expreffly created by deed ; but alfo to thofe, which are created by act and operation of law.
1.Every tenant for life, unlefs reftrained by covenant or agreement, may of common right take upon the land demifed to him reafonable eftovers k or botes l. For he hath a right to the full enjoyment and ufe of the land, and all it's profits, during his eftate therein. But he is not permitted to cut down timber or do other wafte upon the premifes m : for the deftruction of fuch things, as are not the temporary profits of the tenement, is not neceffary for the tenant's complete enjoyment of his eftate ; but tends to the permanent and lafting lofs of the perfon entitled to the inheritance.
2.Tenant for life, or his reprefentatives, fhall not be prejudiced by any fudden determination of his eftate, becaufe fuch determination is contingent and uncertain n. Therefore if a tenant for his own life fows the lands, and dies before harveft, his executors fhall have the emblements, or profits of the crop : for the eftate was determined by the act of God ; and it is a maxim in the law, that actus Dei nemini facit injuriam. The reprefentatives therefore of the tenant for life fhall have the emblements, to compenfate for the labour and expenfe of tilling, manuring, and fowing, the lands ; and alfo for the encouragement of hufbandry, which being a public benefit, tending to the increafe and plenty of provifions, ought to have the utmoft fecurity 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 reverfion, was alfo entitled to the profits of the whole year ; but, if he died between the beginning of March and the end of Auguft, the
kSee pag 25.
lCo. Litt. 41.
mIbid. 53.
nIbid. 55.
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heirs of the tenant received the whole o. From hence our law of emblements feems to have been derived, but with very confiderable improvements. So it is alfo, if a man be tenant for the life of another, and ceftuy que vie, or he on whofe life the land is held, dies after the corn fown, the tenant pur auter vie fhall have the emblements. The fame is alfo the rule, if a life-eftate be determined by the act of law. Therefore, if a leafe be made to hufband and wife during coverture, (which gives them a determinable eftate for life) and the hufband fows the land, and afterwards they are divorced a vinculo matrimonii, the hufband fhall have the emblements in this café ; for the fentence of divorce is the act of law p. But if an eftate for life be determined by the tenant's own act, (as, by forfeiture for wafte committed ; or, if a tenant during widowhood thinks proper to marry) in thefe, and fimilar cafes, the tenants, having thus determined the eftate by their own acts, fhall not be entitled to take the emblements q. The doctrine of emblements extends not only to corn fown, but to roots planted, or other annual artificial profit : but it is otherwife of fruit-trees, grafs, and the like ; which are not planted annually at the expenfe and labour of the tenant, but are either the permanent,, or natural, profit of the earth r. For even when a man plants a tree, he cannot be perfumed to plant it in contemplation of any prefent profit ; but merely with a profpect of it's being ufeful to future fucceffions of tenants. The advantages alfo of emblements are particularly extended to the parochial clergy by the ftatute 28 Hen. VIII. c. 11.For all perfons, who are prefented to any ecclefiaftical benefice, or to any civil office, are confidered as tenants for their own lives, unlefs the contrary be expreffed in the form of donation.
3.A third incident to eftates for life relates to the under-tenants or leffees. For they have the fame, nay greater indulgences, than their leffors, the original tenants for life. the fame ; for the law of eftovers and emblements, with regard to the tenant
oFeud. l. 2. t. 28.
p5 Rep. 116.
qCo. Litt. 55.
rCo. Litt. 55, 56.1 Roll. Abr. 728.
            Q2         for
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for life, is alfo law with regard to his under-tenant, who reprefents him and ftands in his place s : and greater ; for in thofe cafes where tenant for life fhall not have the emblements, becaufe the eftate determines by his own act, the exception fhall not reach his leffee who is a third perfon. as in the cafe of a woman who holds durante viduitate ; her taking hufband is her own act, and therefore deprives her of the emblements : but if fhe leafes her eftate to an under-tenant, who fows the land, and fhe then marries, this her act fhall not deprive the tenant of his emblements, who is a ftranger and could not prevent her t. The leffees of tenants for life had alfo at the common law another moft unreafonable advantage ; for, at the death of their leffors the tenants for life, thefe under-tenants might if they pleafed quit the premifes, and pay no rent to any body for the occupation of the land fince the laft quarter day, or other day affigned for payment of rent u. To remedy which it is now enacted v, that the executors or adminiftrators of tenant for life, on whofe death any leafe determined, fhall recover of the leffee a ratable proportion of rent, from the laft day of payment to the death of fuch leffor.
II.The next eftate for life is of the legal king, as contradiftinguifhed from conventional ; viz. that of tenant in tail after poffibility of iffue extinct. This happens, where one is tenant in fpecial tail, and a perfon, from whofe body the iffue was to fpring, dies without iffue ; or, having left iffue, that iffue becomes extinct ; in either of thefe cafes the furviving tenant in fpecial tail becomes tenant n tail after poffibility of iffue extinct. As, where one has an eftate to him and his heirs on the body of his prefent wife to be begotten, and the wife dies without iffue w ; in this cafe the man has an eftate-tail, which cannot poffibly defcend to any one ; and therefore the law makes ufe of this long periphrafis, as abfolutely neceffary to give an adequate idea of his eftate. For if it had called him barely tenant in fee-tail fpecial, that would
sCo. Litt. 55.
tCro. Eliz. 461.1 Roll. Abr. 727.
u10 Rep. 127.
vStat. 11 Geo. II. C. 19. §. 15.
wLitt. §. 32.
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not have diftinguifhed him from others ; and befides he has no longer an eftate 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 iffue, this had only related to the prefent fact, and would not have excluded the poffibility of future iffue. Had he been ftiled tenant in tail without poffibility of iffue, this would exclude time paft as well as prefent, and he might under this defcription never have had any poffibility of iffue. No definition therefore could fo exactly mark him out, as this of tenant in tail after poffibility of iffue extinct, which (with a precifion peculiar to our own law) not only takes in the poffibility of iffue in tail which he once had, but alfo ftates that this poffibility is now extinguifhed and gone.
This eftate muft be created by the act of God, that is, by the death of that perfon out of whofe body the iffue was to fpring ; for no limitation, conveyance, or other human act can make it. For, if land be given to a man andhis wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they fhall neither of them have this eftate, but be barely tenants for life, notwithftanding the inheritance once vefted in them y. A poffibility of iffue is always fuppofed to exift, in law, unlefs extinguifhed by the death of the parties ; even though the donees be each of them an hundred years old z.
This eftate is of an amphibious nature, partaking partly of an eftate-tail, and partly of an eftate 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 punifhable for wafte, &c 2: or, he is tenant in tail, with many of the reftrictions of a tenant for life ; as, to forfeit his eftate if he alienes it in fee-fimple b : whereas fuch alienation by tenant in tail, though voidable by the iffue, is no forfeiture of the eftate to the reverfioner ; who is not concerned in intereft, till all poffibility of iffue be extinct. But, in
x1 Roll. Rep. 184.ii. Rep. 80.
yCo. Litt. 28.
zLitt. §. 34.Co. Litt. 28.
aCo. Litt. 27.
bIbid. 28.
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general, the law looks upon this eftate as equivalent to an eftate for life only ; and, as fuch, will permit this tenant to exchange his eftate with a tenant for life ; which exchange can only be made, as we fhall fee hereafter, of eftates that are equal in their nature.
III.Tenant by the curtefy of England, is where a man marries a woman feifed of lands or tenements in fee-fimple or fee-tail ; that is, of any eftate of inheritance ; and has by her iffue, born alive, which was capable of inheriting her eftate. In this café, he fhall, on the death of his wife, hold the lands for his life, as tenant by the curtefy of England c.
This eftate, according to Littleton, has it's denomination, becaufe if is ufed within the realm of England only ; and it is faid in the mirrour d to have been introduced by king Henry the firft : but it appears alfo to have been the eftablifhed law of Scotland, wherein it was called curialitas e : fo that probably our word curtefy was underftood to fignify rather an attendance upon the lord's court or curtis, (that is, being his vafal or tenant ) than to denote any peculiar favour belonging to this ifland. And therefore it is laid down f that, by having iffue, the hufband fhall be intitled to do homage to the lord, for the wife's lands, alone. It is likewife ufed in Ireland, by virtue of an ordinance of kink Henry IIIg. It alfo appears h to have obtained in Normandy ; and was likewife ufed among the antient Almains or Germans i. And yet it is not generally apprehended to have been a confequence of feudal tenure k, though I think fome fubftantial feudal reafons may be given for it's introduction. For, if a woman feifed of lands hath iffue by her hufband, and dies, the hufband is the natural guardian of the child, and as fuch is in reafon entitled to the profits of the lands in order to maintain it : and therefore the
cLitt. §. 35, 52.
dc. i. §. C.
Crag. L. 2. t 19. §. 4.
f Litt. §. 90. Co. Litt. 30. 67.
gPat. IiH. III. m. 30. in 2 Bac. Abr. 659.
hGrand Couftum. C. 119.
iLindenbrog. LL. Alman. T. 92.
kWright. 294.
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heir apparent of a tenant by the curtefy could not be in ward to the lord of the fee, during the life of fuch tenant l. As foon therefore as any child was born, the father began to have a permanent intereft in the lands, he became one of the pares curtis, and was called tenant by the curtefy initiate ; and this eftate being once vefted in him by the birth of the child, was not liable to be determined by the fubfequent death or coming of age of the infant.
There are four requifites neceffary to make a tenancy by the curtefy ; marriage, feifin of the wife, iffue, and death of the wife m.1.The marriage muft be canonical, and legal.2.The feifin of the wife muft be an actual feifin, or poffeffion of the lands ; not a bare right to poffefs, which is a feifin in law, but an actual poffeffion, which is a feifin in deed. And therefore a man fhall not be tenant by the curtefy of a remainder or reverfion. But of fome incorporeal hereditaments a man may be tenant by the curtefy, though there have been no actual feifin of the wife ; as in café of an advowfon, where the church has not become void in the life time of the wife, which a man may hold by the curtefy, becaufe it is impoffible to have had actual feifin of it ; and impotentia excufat legem n. If the wife be an idiot, the hufband fhall not be tenant by the curtefy of her lands ; for the king by prerogative is entitled to them, the inftant fhe herfelf has any title : and fince fhe could never be rightfully feifed of thefe lands, and the hufband's title depends entirely upon her feifin, the hufband can have no title as tenant by the curtefy o.3.The iffue muft be born alive. Some have had a notion that it muft be heard to cry ; but that is a miftake. Crying indeed is the ftrongeft evidence of it's being born alive ; but it is not the only evidence p. The iffue alfo muft be born during the life of the mother ; for, if the mother dies in labour, and the Caefarean operation is performed, the hufband in this café fhall not be tenant by the cur-
lF. N. B. 143.
mCo. Litt. 30.
nIbid. 29.
oCo. Litt. 30. Plowd. 263.
pDyer. 25.8 Rep. 34.
tefy :
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tefy : becaufe, at the inftant of the mother's death, he was clearly not entitled, as having had no iffue born, but the land defcended to the child, while he was yet in his mother's womb ; and the eftate, being once fo vefted, fhall not afterwards be taken from him q. In gavelkind lands, a hufband may be tenant by the curtefy without having any iffue r. Therefore if a woman be tenant in tail male, and hath only a daughter born, the hufband is not thereby entitled to be tenant by the curtefy ; becaufe fuch iffue female can never inherit the eftate in tail male t. And this feems to be the true reafon, why the hufband cannot be tenant by the curtefy of any lands of which the wife was not actually feifed : becaufe, in order to intitle himfelf to fuch eftate, he muft have begotten iffue that may be heir to the anceftor of any land, whereof the anceftor was not actually feifed ; and therefore, as the hufband hath never begotten any iffue that curtefy u. And hence we may obferve, with how much nicety and confideration the old rules of law were framed ; and how clofely they are connected and interwoven together, fupporting, illuftrating, and demonftrating one another. The time when the iffue was born is immaterial, provided it were during the coverture : for, whether it were born before or after the wife's feifin of the lands, whether it be living or dead at the time of the feifin, or at the time of the wife's deceafe, the hufband fhall be tenant by the curtefy w. The hufband by the birth of the child becomes (as was before obferved) tenant by the curtefy initiate x, and may do many acts to charge the lands ; but his eftate is not confummate till the death of the wife ; which is the fourth and laft requifite to make a complete tenant by the curtefy y.
qCo. Litt. 29.
rIbid. 30.
sLitt. §. 56.
tCo. Litt. 29.
uIbid. 40.
wIbid. 29.
xIbid. 30.
IV. Tenant
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IV. Tenant in dower is where the hufband of a woman is feifed of an eftate of inheritance, and dies ; in this café, the wife fhall have the third part of all the lands and tenements whereof he was feifed during the coverture, to hold to herfelf for the term of her natural life z.
Dower is called in Latin by the foreign jurifts doarium, but by Bracton and our Englifh writers dos ; which among the Romans fignified the marriage portion, which the wife brought to her hufband ; but with us is applied to fignify this kind of eftate, to which the civil law, in it's original ftate, had nothing that bore a refemblance : nor indeed is there any thing in general more different, than the regulation of landed property according to the Englifh, and roman laws. Dower out of lands feems alfo to have been unknown in the early part of our Saxon conftitution ; for, in the laws of Edmond a, the wife is directed to be fupported wholly out of the perfonal eftate. Afterwards, as may be feen in gavelkind tenure, the widow became entitled to a conditional eftate in one half of the lands, with a provifo that fhe remained chafte and unmarried b ; as is ufual alfo in copyhold dowers, or free bench. Yet fome c have afcribed the introduction of dower to the Normans, as a branch of their local tenures ; though we cannot expect any feodal reafon for it's invention, fince it was not a part of the pure, primitive, fimple law of feuds, but was firft of all introduced into that fyftem (wherein it was called triens, tertia d, and dotalitium) by the emperor Frederick the fecond e ; who was cotemporary with our king Henry III. It is poffible therefore that it might be with us the relic of a Danifh ladies, who fold all their
zLitt. §. 36.
aWilk. 75.
bSomner. Gavelk. 51. Co. Litt. 33.
Bro. Dower. 70.
cWright. 192.
dCrag. L. 2. t. 22. §. 9.
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jewels to ranfom him when taken prifoner by the Vandals f. However this be, the reafon, which our law gives for adopting it, is a very plain and a fenfible one ; for the fuftenance of the wife, and the nurture and education of the younger children g.
In treating of this eftate, let us, firft, confider, who may be endowed ; fecondly, of what fhe may be endowed ; thirdly, the manner how fhe fhall be endowed ; and, fourthly, how dower may be barred or prevented.
1.Who may be endowed. She muft be the actual wife of the party at the time of his deceafe. If fhe be divorced a vinculo matrimonii, fhe fhall not be endowed ; for ubi nullum matrimonium, ibi nulla dos h. But a divorce a menfa et thoro only doth not deftroy the dower I ; no, not even for adultery itfelf, by the common law k. Yet now by the ftatute Weftm.2. l if a woman elopes from her hufband, and lives with an adulterer, fhe fhall lofe her dower, unlefs her hufband be voluntarily reconciled to her. It was formerly held, that the wife of an idiot might be endowed, though the hufband of an idiot could not be tenant by the curtefy m : but as it feems to be at prefent agreed, upon principles of found fenfe and reafon, that an idiot cannot marry, being incapable of confenting to any contract, this doctrine cannot now take place. By the antient law the wife of a perfon attainted of treafon or felony could not be endowed ; to the intent, fays Staunforde n, that, if the love of a man's own life cannot reftrain him from fuch atrocious acts, the love of his wife and children may : though Britton o gives it another turn ; viz. that it is perfumed the wife was privy to her hufband's crime. However, the ftatute I Edw. VI. c. 12. abated the rigor of the common law in.
fMod. Un. Hift. xxxii. 91.
gBract. l. 2. c. 39.Co. Litt. 30.
hBract. l. 2. c. 39.§. 4.
ICo. Litt. 32.
kYet, among the antient Goths, an adulterefs was punifhed by the lofs of her dotalitii et trientis ex bonis mobilibus viri : (Stiernh. l. 3. c. 2.)
l13 Edw. I. c. 34.
mCo. Litt. 31.
nP. C. b. 3. c. 3.
oc. 110.
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this particular, and allowed the wife her dower. But a fubfequent ftatute p revived this feverity againft the widows of traitors, who are now barred of their dower, but not the widows of felons. An alien alfo cannot be endowed, unlefs fhe be queen confort ; for no alien is capable of holding lands q. The wife muft be above nine years old at her hufband's death, otherwife fhe fhall not be endowed r : though in Bracton's time the age was indefinite, and dower was then only due, “fi uxor poffit dotem promereri, et virum fuftinere s.”
2.We are next to enquire, of what a wife may be endowed. And fhe is now by law entitled to be endowed of all lands and tenements, of which her hufband was feifed in fee-fimple or fee-tail at any time during the coverture ; and of which any iffue, which fhe might have had, might by poffibility have been heir t. Therefore if a man, feifed in fee-fimple, hath a fon by his firft wife, and after marries a fecond wife, fhe fhall be endowed of his lands ; for her iffue might by poffibility have been heir, on the death of the fon by the former wife. But, if there be a donee in fpecial tail, who holds lands to him and the heirs of his body begotten on Jane his wife ; though Jane may be endowed of thefe lands, yet if Jane dies, and he marries a fecond wife, that fecond wife fhall never be endowed of the lands entailed ; for no iffue, that fhe could have, could by any poffibility inherit them u. A feifin in law of the hufband will be as effectual as a feifin in deed, in order to render the wife dowable ; for it is not in the wife's power to bring the hufband's title to an actual feifin, as it is in the hufband's power to do with regard to the wife's lands : which is one reafon why he fhall not be tenant by the curtefy, but of fuch lands whereof the wife, or he himfelf in her right, was actually feifed in deed w. The feifin of the hufband, for a tranfitory inftant only, when the fame act which gives
p5 & 6 Edw. VI. c. II.
qCo. Litt. 31.
rLitt. §. 36.
sl. 2. c. 9. §. 3.
tLitt. §. 36. 53.
uIbid. §. 53.
wCo. Litt. 31.
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him the eftate conveys it alfo out of him again, (as where by a fine land is granted to a man, and he immediately renders it back by the fame fine) fuch a feifin will not intitle the wife to dower x : for the land was merely in tranfitu, and never refted in the hufband. But, if the land abides in him for a fingle moment, it feems that the wife fhall be endowed thereof y. And, in fhort, a widow may be endowed of all her hufband's lands, tenements, and hereditaments, corporeal or incorporeal, under the reftrictions before-mentioned ; unlefs there be fome fpecial reafon to the contrary. Thus, a woman fhall not be endowed of a caftle, built for defence of the realm z : nor of a common without ftint ; for, as the heir would then have one portion of this common, and the widow another, and both without ftint ; the common would be doubly ftocked a. Copyhold eftates alfo are not liable to dower, being only eftates at the lord's will ; unlefs by the fpecial cuftom of the manor, in which café it is ufually called the widow's free-bench b. But, where dower is allowable, it matters not, though the hufband aliene the lands during the coverture ; for he alienes them liable to dower c.
3. Next. As to the manner in which a woman is to be endowed. There are now fubfifting four fpecies of dower ; the fifth, mentioned by Littleton d, de la plus belle, having been abolifhed together with the military tenures, of which it was a confequence.1.Dower by the common law ; or that which is before defcribed.2.Dower by particular cuftom e; as that the wife fhall have half the hufband's lands, or in fome places the whole, and in fome only a quarter.3.Dower ad oftium ecclefiae f : which is
yThis doctrine was extended very far by a jury in Wales, where the father and fon were both hanged in one cart, but the fon was fuppofed to have furvived the father, by appearing to ftruggle longeft ; whereby he became feifed of an eftate by furvivorfhip, in confequence of which feifin his widow had a verdict for her dower. (Cro. Eliz. 503.)
zCo. Litt. 31. 3 Lev. 401.
aCo. Litt. 32. 1 Jon. 315.
b4 Rep. 22.
cCo. Litt. 32.
d§. 48 , 49.
eLitt. §. 37.
fIbid. §. 39.
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where tenant in fee-fimple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (fir Edward Coke in his tranflation adds) troth plighted between them, doth endow his wife with the whole, or fuch quantity as he fhall pleafe, of his lands ; at the fame time fpecifying and afcertaining the fame : on which the wife, after her hufband's death, may enter without farther ceremony.4.Dower ex affenfu patris g ; which is only a fpecies of dower ad oftium ecclefiae, made when the hufband's father is alive, and the fon by his confent, expreffly given, endows his wife with parcel of his father's lands. In either of thefe cafes, they muft (to prevent frauds) be made h in facie ecclefiae et ad oftium ecclefiae ; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandeftina fuere conjugia.
Itis curious to obferve the feveral revolutions which the doctrine of dower has undergone, fince it's introduction into England. It feems firft to have been of the nature of the dower in gavelkind, before-mentioned ; viz. a moiety of the hufband's lands, but forfeitable by incontinency or a fecond marriage. By the famous charter of Henry I, this condition, of widowhood and chaftity, was only required in café the hufband left any iffue I : and afterwards we hear no more of it. Under Henry the fecond, according to Glanvil k, the dower ad oftium ecclefiae was the moft ufual fpecies of dower ; and here, as well as in Normandy l, it was binding upon the wife, if by her confented to at the time of marriage. Neither, in thofe days of feodal rigour, was the hufband allowed to endow her ad oftium ecclefiae with more than the third part of the lands whereof he then was feifed, though he might endow her with lefs ; left by fuch liberal endowments the lord fhould be defrauded of his wardfhips and other feodal profits m. But if no
gIbid. §. 40.
hBracton. l. 2. c. 39. §. 4.
ISi mortuo viro uxor ejus remanferit, et fine liberis fuerit, dotem fuam babebit ; - fi vero uxor cum liberis remanferit, dotem quidem babebit, dum corpus fumm legitime fervaverit. (Cart. Hen. I. A. D. 1101. Introd. To great charter, edit. Oxon. Pag. Iv.)
kl. 6. c. 1. & 2.
lGr. Couftum. C. 101.
mBract. l. 2. c. 39. §. 6.
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fpecific dotation was made at the church porch, then fhe was endowed by the common law of the third part (which was called her dos rationabilis) of fuch lands and tenements, as the hufband was feifed of at the time of the efpoufals, and no other ; unlefs he fpecially engaged before the prieft to endow her of his future acquifitions n : and, if the hufband had no lands, an endowment in goods, chattels, or money, at the time of efpoufals, was a bar of any dower o in lands which he afterwards acquired p. In king John's magna carta, and thefirft charter of Henry III. q, no mention is made of any alteration of the common law, in refpect of the lands fubject to dower : but in thofe of 1217, and 1224, it is particularly provided, that a widow fhall be intitled for her dower to the third part of all fuch lands as the hufband had held in his life time r : yet, in café of a fpecific endowment of lefs ad oftium ecclefiae, the widow had ftill no power to waive it after her hufband'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 hufband's goods and chattels t : and, under Edward IV, Littleton lays it down ex-
nDe queftu fuo. (Glanv. Ibid.) de terries acquifitis et acquirendis. (Bract. ibid.)
oGlanv. C. 2.
pWhen fpecial endowments were made ad oftium ecclefiae, the hufband, after affiance made, and troth plighted, ufed to declare with what fpecific lands he meant to endow his wife, (quod dotat 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 fervice, the following rubric ; “facerdos interroget dotem mulieris ; et, fi terra “ ei in dotem detur, tunc dicatur pfalmus ifte, “&c.” When the wife was endowed generally (ubi quis uxorem fuam dotaverit in generali, de omnibus terries et tenementis ; Bract. ibid.) the hufband feems to have faid, “with “ all my lands and tenements I thee endow ;” and tehn they all became liable to her dower. When he endowed her with perfonalty only, he ufed to fay, “with all my worldly goods “(or, as the Salifbury ritual has it, with all “my worldly cbatel) I thee endow ;” which intitled the wife to her thirds, or pars rationabilis, of his perfonal eftate, which is provided for by magna carta, cap. 26. and will be farther treated of in the concluding chapter of this book : though the retaining this laft expreffion in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which fhe acquires during coverture, out of her hufband's perfonalty.
qA. d. 1216. c. 7. edit. Oxon.
rAffignetur autem ei pro dote fua tertia pars totius terrae mariti fui quae fua fuit in vita fua, nifi de minori dotafa fuerit ad oftium eeclefiae. C. 7. (Ibid.)
sBract. ubi fupr. Britton. C. 101, 102. Flet. L. 5. c. 23. §. 11, 12.
tP. 7 he. IV. 13, 14.
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preffly, that a woman may be endowed ad oftium ecclefiae with more than a third part u ; and fhall have her election, after her hufband's death, to accept fuch dower, or refufe it and betake herfelf to her dower at common law w. Which ftate of uncertainty was probably the reafon, that thefe fpecific dowers, ad oftium ecclefiae and ex affenfu patris, have fince fallen into total difufe.
I proceed therefore to confider the method of endowment, or affigning dower, by the common law, which is now the only ufual fpecies. By the old law, grounded on the feodal exactions, a woman could not be endowed without a fine paid to the lord : neither could fhe marry again without his licence ; left fhe fhould contract herfelf, and fo convey part of the feud, to the lord's enemy x. This licence the lords took care to be well paid for ; and, as it feems, would fometimes force the dowager to a fecond marriage, in order to gain the fine. But, to remedy thefe oppreffions, it was provided, firft by the charter of Henry I y, and afterwards by magna carta z, that the widow fhall pay nothing for her marriage, nor fhall be diftreined to marry afrefh, if fhe choofes to live without a hufband ; but fhall not however marry againft the confent of the lord : and farther, that nothing fhall remain in her hufband's capital manfion-houfe for forty days after his death, during which time her dower fhall be affigned. Thefe forty days are called the widow's quarentine ; a term made ufe of in law to fignify the number of forty days, whether applied to this occafion, or any other a. The particular lands to be held in dower, muft be affigned b by the heir of the hufband, or his guardian ; not only for the fake of notoriety, but alfo to entitle the lord of the fee to demand his fervices of the heir, in refpect of the lands fo held. For the heir by this entry becomes tenant
u§. 39.F. N. B. 150.
w§. 41.
xMirr. C. i. §. 3.
yubi fupra.
zcap. 7.
aIt fignifies, in particular, the forty days, which perfons coming from infected countries are obliged to wait, before they are permitted to land in England.
bCo. Litt. 34, 35.
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thereof to the lord, and the widow is immediate tenant to the heir, by a kind of fubinfeudation or under-tenancy, completed by this inveftiture or affignment : which tenure may ftill be created, notwithftanding the ftatute of quia emptores, becaufe the heir parts not with the fee-fimple, but only with an eftate for life. If the heir or his guardian do not affign her dower within the term of quarentine, or do affign it unfairly, fhe has her remedy at law, and the fheriff is appointed to affign it c. If the thing of which fhe is endowed be divifible, her dower muft be fet out by metes and bounds ; but, if it be indivifible, fhe muft be endowed fpecially ; as, of the third part of the profits of an office, the third fheaf of tithe, and the like d.
Upon preconcerted marriages, and in eftates of confiderable confequence, tenancy in dower happens very feldom : for, the claim of the wife to her dower happens very feldom : for, the claim of the wife to her dower at the common law diffufing itfelf fo extenfively, it became a great clog to alienations, and was otherwife inconvenient to families. Wherefore, fince the alteration of the antient law refpecting dower ad oftium ecclefiae, which hath occafioned the intire difufe of that fpecies of dower, jointures have been introduced in their ftead, as a bar to the claim at common law. Which leads me to enquire, laftly,
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 treafon of her hufband, and other difabilities before-mentioned, but alfo by detaining the title deeds, or evidences of the eftate from the heir ; until fhe reftores them e : and, by the ftatute of Glocefter f, if a dowager alienes the land affigned her for dower, fhe forfeits it ipfo facto, and the heir may recover it by action. A woman alfo may be barred of her dower, by levying a fine or fuffering a recovery of the lands, during her cover-
cCo. Litt. 34. 35.
dIbid. 32.
eIbid. 39.
f6. Edw. I. c. 7.
ture g.
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ture g. But the moft ufual method of barring dowers is by jointures, as regulated by the ftatute 27 he. VIII. c. 10.
A jointure, which ftrictly fpeaking fignifies a joint eftate, limited to both hufband and wife, but in common acceptation extends alfo to a fole eftate, limited to the wife only, is thus defined by fir Edward Coke h; “a competent livelihood of freehold “ for the wife, of lands and tenements ; to take effect, in profit “ or poffeffion, prefently after the death of the hufband ; for the “ life of the wife at leaft.” This defcription is framed from the purview of the ftatute 27 Hen. VIII. c. 10. before-mentioned ; commonly called the ftatute of ufes, of which we fhall fpeak fully hereafter. At prefent I have only to obferve, that, before the making of that ftatute, the greateft part of the land of England was conveyed to ufes ; the property or poffeffion of the foil being vefted in one man, and the ufe, or profits thereof, in another ; whofe directions, with regard to the difpofition thereof, the former was in confcience obliged to follow, and might be compelled by a court of equity to obferve. Now, though a hufband had the ufe of lands in abfolute fee-fimple, yet the wife was not entitled to any dower therein ; he not being feifed thereof : wherefore it became ufual, on marriage, to fettle by exprefs deed fome fpecial eftate to the ufe of the hufband and his wife, for their lives, in joint-tenancy or jointure ; which fettlement would be a provifion for the wife in café fhe furvived her hufband. At length the ftatute of ufes ordained, that fuch as had the ufe of lands, fhould, to all intents and purpofes, be reputed and taken to be abfolutely feifed and poffeffed of the foil itfelf. In confequence of which legal feifin, all wives would have become dowable of fuch lands as were held to the ufe of their hufbands, and alfo entitled at the fame time to any fpecial lands that might be fettled in jointure ; had not the fame ftatute provided, that upon making fuch an eftate in jointure to the wife before marriage, fhe fhall be for ever precluded from her dower i. But then thefe
gPig. Of recov. 66.
H1 Inft. 36.
I4 Rep. 1, 2.
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four requifites muft be punctually obferved.1.The jointure muft take effect immediately on the death of the hufband.2.It muft be for her own life at leaft, and not pur auter vie, or for any term of years, or other fmaller eftate.3.It muft be made to herfelf, and no other in truft for her.4.It muft be made, and fo in the deed particularly expreffed to be, in fatisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, fhe has her election after her hufband's death, as in dower ad oftium ecclefiae, and may either accept it, or refufe it and betake herfelf to her dower at common law ; for fhe was not capable of confenting 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 jointrefs is evicted, or turned out of poffeffion, fhe fhall then (by the provifions of the fame ftatue) have her dower pro tanto at the common law k.
There are fome advantages attending tenants in dower that do not extend to jointreffes ; and fo, vice verfa, jointreffes are in fome refpects more privileged than tenants in dower. Tenant in dower by the old common law is fubject to no tolls or taxes ; and here is almoft the only eftate on which, when derived fromthe king's debtor, the king cannot diftrain for his debt ; if contracted during the coverture l. But, on the other hand, a widow may enter at once, without any formal procefs, on her jointure land ; as fhe alfo might have done on dower ad oftium ecclefiae, which a
kThefe fettlements, previous to marriage, feem to have been in ufe among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. “Dotem non uxor marito, fed “uxori maritus affert : interfunt parentes et “propinqui, et muncra probant.” (de mor- erm. C. 18.) And Caefar, (de bello. Balico, l. 6. c. 18.) has given us the terms of a marriage fettlement among the Gauls, as nicely calculated as any modern jointure. “Viri, quantas pecunias ab uxovibus dotis no- “mine acceperunt, tantas ex fuis bonis, aefti- “matione facta, cum dotibus communicant. “ hujus onmis pecuniae conjunctim ratio babe- “tibus fuperiorum temporum pervenit.” The dauphin's commentator on Caefar fuppofes that this Gaulifh cuftom was the ground of the new regulations made by juftinian (Nov. 97.) with regard to the provifion for widows among the Romans : but furely there is as much reafon to fuppofed, that it gave the hint for our ftatutable jointures.
lCo. Litt. 31. a. F. N. B. 150.
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jointure in many points refembles ; and the refemblance was ftill greater, while that fpecies of dower continued in it's primitive ftate : whereas no fmall trouble and a very tedious method of proceeding, is neceffary to compel a legal affignment of dower m. And, what is more, though dower be forfeited by the treafon of the hufband, yet lands fettled in jointure remain unimpeached to the widow n. Wherefore fir Edward Coke very juftly gives it the preference, as being more fure and fafe to the widow, than even dower ad oftium ecclefiae, the moft eligible fpecies of any.
mCo. Litt. 36.
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