Dower. Littleton's definition of dower. LECTURE VI. BEFORE Considering the Settlements usually made on the occasion of marriage, it is desirable that you should understand the estates and interests which the law gives, independently of settlement, first to the wife in the lands of her husband, and secondly to the husband in the lands of his wife. The right which the law gives to a woman on her marriage is called her right of dower. This right, of which anciently the husband was unable to deprive his wife without her consent, was, by an Act passed in the 3rd and 4th years of the reign of King William IV. (a) enlarged in some respects, but diminished in one most important respect, namely this, that by this Act it rests entirely in the pleasure of the husband whether his wife shall have dower out of his lands or not. How far this feature of the Act is an amendment of the law may perhaps be questioned. At any rate it has rendered it more than ever desirable that, on the marriage of a woman with a man entitled to landed property, a settlement on the wife by way of jointure should be stipulated for by her friends. Let us first consider the law of dower as it stood before the Act was passed to amend it. Littleton tells us (b) that there were in his time five kinds of dower, viz., dower by the common law, dower by the custom, dower ad ostium ecclesiæ, dower ex assensu patris, and dower de la plus belle. "Tenant in dower," says Littleton (c), "is where a man is seised of certain lands or (a) Stat. 3 & 4 Will. IV. c. 105. (c) Sect. 36. tenements in fee simple, fee tail general, or as heir in special tail, and taketh a wife and dieth, the wife, after the decease of her husband, shall be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, to have and to hold to the same wife in severalty, by metes and bounds, for the term of her life, whether she hath issue by her husband or no, and of what age soever the wife be, so as," he adds by way of a precaution, which in these days is scarcely necessary "so as she be past the age of nine years at the time of the death of her husband (for she must be above nine years old at the time of the decease of her husband), otherwise she shall not be endowed." This is dower by the common law. It was a right of which the husband could not deprive his wife either by alienation by deed or will, or by running into debt. Her claim was paramount the rights both Dower paraof his alienees and of his creditors. mount both alienees and creditors of husband. Seisin. You will observe, first, that the man must have been seised. This subject affords a further illustration of the subject of my former course of Lectures (d), as it shows the importance attached by the ancient law to the seisin of the freehold. If a man was not seised, his wife had no right to dower. Now you will remember that if a man had vested in him a reversion or remainder in fee simple, expectant on the determination of a prior estate for life, or of a prior estate tail, he was not seised. The seisin was in the prior tenant for life or tenant in tail, and, being in him, could not at the same time be in the person entitled to the remainder or reversion expectant on his estate. A person entitled to such a reversion or No dower of remainder held it free from any right of dower in his a reversion or remainder expectant on wife, so long as the estate continued a mere reversion or remainder; but the moment his estate became an estate freehold. an estate of Seisin in law sufficient for dower. Abatement. in possession, his wife became entitled to dower by virtue of the scisin of her husband. If the husband was seised, it was not material whether his seisin were a seisin in law merely, or a seisin in deed. If, at any time, though but for an instant, during the coverture, the husband was seised of land, whether in law or in deed, his wife was entitled to her dower. This is explained by Mr. Watkins in his Essay on the Law of Descents (e). "If the heir has such right, that is, a right to the lands, together with a seisin in law, his widow may claim her dower, though he die before entry, and though that seisin in law abide in him but for a single moment. As where lands descend to an heir, who is married at the time of the descent cast, and a stranger abates on the death of the ancestor; and, during the possession of the stranger, the heir dies, his widow shall be endowed. For, as the law, immediately on the death of the ancestor, casts the estate on the heir, and as the stranger cannot abate till after the death of the ancestor (for had he entered before, he would not have been the abator of the heir but the disseisor of the ancestor), the seisin, in contemplation of law, is in such heir before the abatement of the stranger. For, supposing that the stranger had entered the very instant that the ancestor died, yet, as the possession was necessarily vacant before he could have abated, the possession during such vacancy was presumed by the law to have been in the heir; and the law frequently permits an instant to be cleft asunder, for it tells us that in things of an instant there is a priority of time, and the one shall be said to precede the other, although both shall be said to happen at one instant; for every instant, says the law, contains the end of one time and the commencement of another. But we must not (e) Pages 42, 44, 45, 4th ed. dowable. forget," adds Mr. Watkins, "that, though it thus cleaves an instant into two parts, it gravely informs us that it does not carry its pretensions so far as to be able to carve it into three." "No case can be put," says Lord Coke, in Fitz William's case (f), "that by any construction three times may be admitted in one instant." "But if the heir had not been married at the time of the descent cast, and a stranger had abated, and afterwards the heir had married and died before a subsequent If heir married during an seisin, his wife should not be endowed. For, by the abatement his entry of the stranger, his seisin in law was rebutted; wife not and therefore as he had no seisin either in deed or law-and seised he must be, says Sir Edward Coke, either the one way or the other during the coverture— he had only a right remaining in him. And as a seisin, either in deed or in law, was thus essential to give title of dower to the widow, and as the heir had now neither of those seisins, by consequence his widow could not be dowable." "So had the heir entered on the death of his ancestor and gained an actual seisin, and then, during his celibacy, had been disseised, and after such disseisin had married and died, before a subsequent recovery of seisin, his widow should not be endowed. But had he in the first case been married at the time of the descent, and so had a seisin in law during the coverture, or had he had an actual seisin after marriage, and then been disseised, or had aliened his lands, his widow would be certainly dowable." uses. The instantaneous seisin which a grantee to uses Grantee to takes when the Statute of Uses annexes his estate to the uses declared, is not sufficient to entitle his widow to dower (g). And when a man is seised of lands not beneficially but merely as a trustee, equity will prevent Trustee. his widow from obtaining any dower out of such lands. (f) 6 Rep. 33 a. (g) Co. Litt. 31 b; 2 Bl. Com. 131. Seisin in fee or in tail. Seisin at any time during the coverture. The first requisite, therefore, to entitle a wife to dower, was that her husband must have been seised either in law or in deed. It was also necessary that he should be seised in fee simple, fee tail, or as heir in special tail. This is explained by Littleton in another section (1), in which he says, "Also in every case where a woman taketh a husband seised of such an estate in tenements, &c., so as by possibility it may happen that the wife may have issue by her husband, and that the same issue may by possibility inherit the same tenements of such an estate as the husband hath, as heir to the husband, of such tenements she shall have her dower, and otherwise not. For if tenements be given to a man and to the heirs which he shall beget of the body of his wife, in this case the wife hath nothing in the tenements, and the husband hath an estate but as donee in special tail. Yet if the husband die without issue the same wife shall be endowed of the same tenements, because the issue which she by possibility might have had by the same husband might have inherited the same tenements. But, if the wife dieth, living her husband, and after the husband takes another wife and dieth, his second wife shall not be endowed in this case, for the reason aforesaid." The reason being, as you see, that in this case, no issue which the second wife could have had, could by possibility inherit the lands, because they were given to the husband and to the heirs which he should beget of the body of his former wife, and not of the body of the second wife; who therefore could have no claim to dower in the lands. Again, the wife had a right to be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture. We have (h) Sect. 53. |