preference which the law in ancient times had to lands held by knight's service over those held in socage. If a man was seised of lands held by knight's service (ƒ), and also of lands held in socage (g), and died, leaving a widow and an infant heir, then the guardian in chivalry might require the wife to be endowed de la plus belle, that is, of the most fair or best part of the tenements which she had as the infant's guardian in socage, rather than have her dower out of any of the lands holden by knight's service. Of course this kind of dower became Now imposimpossible after tenure by knight's service was abolished by the statute of 12 Charles II. c. 24.

sible.

This was the state of the law when the Act was passed for the amendment of the law relating to dower (h). The first enactment alters the old rule of Dower Act. equity that a woman shall not be entitled to dower out of a mere trust estate; and it also deprives what are called uses to bar dower of all the efficacy they formerly had in depriving the wife of her dower. For it enacts (i) 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 in equity to dower out of the same land. Under the ordinary uses to bar dower Wife now the husband has an interest partly legal and partly under uses to equitable, equal to an estate of inheritance in posses- bar dower. sion; and the consequence is that his widow is now entitled in equity to dower out of the lands (). But Must be in possession. you will observe that the equitable estate must be an

(f) Lectures on the Seisin of the Freehold, pp. 17 et seq.

(g) Ibid. p. 20.

(h) Stat. 3 & 4 Will. IV. c. 105.

(i) Sect. 2.

(k) Fry v. Noble, 20 Beav. 598; affirmed, 7 De Gex, M. & G. 687; Clarke v. Franklin, 4 Kay & J. 266.

dowable

entry or action.

Sect. 4.

estate of inheritance in possession, or equal to an estate of inheritance in possession; so that there is still no right of a married woman to any dower out of any estate which belonged to her husband only in remainder expectant on an estate of freehold (7).

The next enactment alters the law which required a seisin either in deed or in law to be in the husband at some time during the coverture. It provides (m) that Dower out of when a husband shall have been entitled to a right of 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. This enactment so far is in favour of the widow. The next enactment, however, places the widow's dower entirely in the hands of her husband. Section 4 provides that no widow shall be Alienation by entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his will (n). And the fifth section enacts that all Debts of hus- partial estates and interests, and all charges created by any disposition or will of a husband, and all debts, incumbrances, contracts and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower. I mentioned that under the old law the dower of the wife was not affected by or subject to any of the debts of her husband (0), but now her dower may not only be taken from her by him, but it is chargeable with his debts and incumbrances. The sixth section enacts that a widow shall not be entitled to dower out of any land

husband.

Sect. 5.

band.

Sect. 6.

Declaration against

dower.

(1) Ante, p. 81.

(m) Sect. 3.

(n) Lacey v. Hill, L. R., 19 Eq. 346.

(0) Ante, p. 81.

of her husband, when in the deed by which such land was conveyed to him, or by any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land. In consequence of this enactment a declaration is now usually inserted in purchase deeds that the widow of the purchaser shall not be entitled to dower out of the land purchased. Persons who make this declaration should take care not to die intestate, as, in that case, their widows may be left entirely destitute of any provision. The seventh section Sect. 7. enacts that a widow shall not be entitled to dower out Exclusion by will. of any land of which her husband shall die wholly or partially intestate, when, by the will of her husband duly executed for the devise of freehold estates, he shall declare his intention that she shall not be entitled to dower out of such land, or out of any of his land. And Sect. 8. the eighth section enacts that the right of a widow to Conditions by dower shall be subject to any conditions, restrictions, or band. directions which shall be declared by the will of her husband, duly executed as aforesaid.

will of hus

Sect. 9.

Devise to widow.

The ninth section enacts that where a husband shall devise any land out of which his widow would be entitled to dower if the same were not so devised, or any estate or interest therein, to or for the benefit of his widow, such widow shall not be entitled to dower out of or in any land of her said husband, unless a contrary intention shall be declared by his will. Before this enactment the question frequently arose whether a woman was entitled to her dower in addition to any benefit given to her by her husband's will, or whether she was bound to elect between her dower and the Election by widow. benefit intended for her (p). This question can now no longer arise. If the husband gives any estate or interest whatever in the lands for the benefit of his widow,

(p) See Thompson v. Burra, L. R., 16 Eq. 592.

Sect. 10.

Saving of gift of personal estate or of land

not dowable.

Sect. 11. Husband's covenant.

Legacies in bar of dower.

Entitied to priority. Exception.

Extent of
Act.

she must take that instead of her dower. But section 10 enacts that no gift or bequest made by any husband to or for the benefit of his widow, of or out of his personal estate, or of or out of any of his land not liable to dower, shall defeat or prejudice her right to dower, unless a contrary intention shall be declared by his will. And section 11 provides that nothing in the Act contained shall prevent any Court of Equity from enforcing any covenant or agreement entered into by or on the part of any husband not to bar the right of his widow to dower out of his lands or any of them.

A legacy given by a man to his widow in satisfaction of her dower was considered as entitled to priority in payment over his other legacies, inasmuch as the other legacies were simply voluntary, whereas the gift to a widow was in consideration of her relinquishing her right to dower; and although the dower of a wife is now placed in the power of her husband, yet the Act enacts (g), that nothing therein contained shall interfere with any rule of equity or of any ecclesiastical court, by which legacies bequeathed to widows in satisfaction of dower are entitled to priority over other legacies. But it has been held that a widow is not entitled to priority over other legatees in respect of an annuity bequeathed to her by her husband in satisfaction of her dower, where the only real estate which the testator had was conveyed to him with a declaration against dower (1).

The last enactment (s) is that the Act shall not extend to the dower of any widow who shall have been married on or before the 1st of January, 1834, and shall not give to any will, deed, contract, engagement, or charge executed, entered into, or created before the said 1st day (2) Sect. 12.

(r) Roper v. Roper, L. R., 3 Ch.

D. 714.

(8) Sect. 14.

of January, 1834, the effect of defeating or prejudicing any right to dower.

This Act has been decided to extend to gavelkind Act extends lands (t); although, as we have seen, it does not extend to gavelkind. to freebench of copyhold lands (u). It extends the rights of the widow to estates holden in trust, and to mere rights of entry, on the one hand; and, on the other hand, it places the wife's right of dower entirely in the hands of her husband, in case he chooses to deprive her of any provision out of his lands.

In my next Lecture I hope to speak of the husband's estate by curtesy in the lands of his wife.

(t) Farley v. Bonham, 2 John. & H. 177.

(u) Ante, p. 91.

W.S.

H