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of lands ac

Jan. 1834,

where the mar riage took place on or before that day.

CHAP. V. deserve, from the remark of a writer of high authority, that "the 3 & 4 Will. 4, c. 74, s. 77, may be held to extend to dower so as to enable a married woman to destroy it, but does not in expression accurately embrace it.”(a) -whether hus- 2. It has been contended that the dower of a woman band's declaration will exclude married on or before the 1st of January, 1834, out of wife's dower out lands purchased by the husband after that day, may be quired after 1st excluded by a declaration (and, as a consequence, by alienation, &c.) under the Dower Act. In order to support that proposition, the last section (b) must be expounded thus:-" this act shall not extend to any title of dower which shall have attached or shall attach on or before the 1st of January, 1834," instead of-" this act shall not extend to the dower of any widow who shall have been or shall be married on or before," &c.; and the question will be, not when the woman was married, but when the dower first attached-a question not of extrinsic fact, but of title. According to this exposition, (which entirely changes the language of the enactment,) if, on or before the 1st of January, 1834, land was limited to A. for life, remainder to the husband in fee, or to A. and the husband as joint tenants in fee, and A. died after that day, living the husband and wife, the dower then first attaching might be excluded by the declaration or alienation of the husband, &c., though the wife may not unreasonably be presumed to have calculated on the contingency of the husband's becoming seised solely, or seised in possession. It would not be possible to distinguish

(a) 1 Sugd. Vend. 9th ed. 344; vide infrà, Prec. No. 31, n. (b)" And be it further enacted, that this act shall not extend to the dower of any widow who shall have been or shall be married on or before the 1st day 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 of January, 1834, the effect of defeating or prejudicing any right to dower." S. 14.

between such cases and the common case of an original CHAP. V. acquisition by purchase after the 1st of January, 1834. The construction must be either with reference to the time when the marriage was contracted, or with reference to the time when the dower attached. On the other hand, if titles of dower, attaching after the 1st of January, 1834, of women married on or before that day, cannot be defeated by a declaration, &c. under the Dower Act, it seems to follow that such women cannot claim dower in equity under the act. It would not, indeed, be just or reasonable that they should be allowed to take the benefit of the provision made by the act, except upon the terms imposed by the act-that they should claim at once under and in opposition to the same law. It must be admitted. that the concluding section of the Dower Act is obscurely worded, and open to different constructions; but the sound conclusion seems to be, that the new law of dower was made for women married after the 1st of January, 1834, exclusively. This construction offers no violence to the letter of the act, while, for all practical purposes, it draws a broad and intelligible line of demarcation. The first branch of the section excepts out of the act women married on or before the 1st of January, 1834: the second branch restricts the operation of the act, as to women left within the act, to instruments and acts executed and done on or after that day. The natural import of the words is" that none of the effects attributed by this act to the declaration &c. of the husband, shall belong to any such declaration &c. made &c. before the 1st of January, 1834;"-but the act has attributed no effect, or rather has denied effect to the declaration &c. of the husband in regard to women married on or before that day. That construction is the best, which, without departing from the words, gives a reason

CHAP. V. able and consistent operation to both branches of the

Form of declaration excluding dower.

Opinions concerning the Dower Act.

section. If, by a stretch of implicative construction, the clause be read as affirming the efficacy of a deed &c. executed &c. on or after the 1st of January, 1834, to defeat or prejudice any right of dower, how is that reading to be reconciled with the previous saving of rights of dower attaching on or before the 1st of January, 1834? The interpretation in question would have been dismissed with a brief notice, if the writer had not been informed of attempts made, under the sanction of respectable advisers, to enforce its adoption in practice. In order to meet, without appearing to countenance the doubt upon the point last discussed, the declaration may be thus expressed: "And the said [purchaser] hereby declares that no woman who shall become his widow, and who shall not be excluded from dower out of the said hereditaments and premises by the effect of the limitations hereinbefore contained, [or, and who, but for this declaration, would be dowable out of the said hereditaments and premises,] shall be dowable thereout."

This measure has not been well received by the profession. "There appears to have been no sufficient ground," observes the eminent writer already quoted, (a) for this alteration of the law. The wife's ancient right of dower has been in effect taken away. And surely it is inconsistent, whilst you enable the husband in every case to defeat it, to extend the right over equitable estates. The first clause of the provision, No. 3, (b) was suggested by the author, and was, by the desire of Lord Eldon, introduced into a bill for altering the statute of limitations, brought into the House of Commons by the present ViceChancellor, when he was a member of that House. It was no infringement upon the right of the wife, for as the (u) 1 Sugd. Vend. 9th ed. p. 366. (b) S. 6.

husband might have limited the estate to uses to bar CHAP. V. dower, so as to prevent dower from attaching, there was no reason why his simple declaration should not have the same operation; and the object was to prevent the unnecessary creation of powers. But the vesting of a power in the husband to defeat the wife's right after it has attached must be defended upon different grounds."

The act is silent as to free-bench, the right to which Free-bench. does not, unless by the special custom of the manor, attach in the lifetime of the husband, nor consequently interfere with his dominion over the customary estate.

The ACT FOR THE AMENDMENT OF THE LAW OF INHERITANCE, by admitting the lineal ancestry, the halfblood, and persons claiming through an attainted ancestor, has removed what were considered as blemishes in our system of descent; and it has likewise amended the law of descent in some other particulars.

This act reverses a rule familiar to the conveyancer, by providing that, under a devise to the testator's heir, he shall in every case be in as devisee, and not by descent; and that under a limitation to the grantor, or to the heirs of the grantor, he shall be in by purchase, and not merely as restored to his old dominion.(a) The fee taken under the devise or limitation will therefore be a new acquisition, and descend from the heir or grantor as the first purchaser.

The aberrations in the old table of descents demanded less imperatively than the condition of many other branches of real property law, the interference of the legislature; for however much they might offend in theory, yet, under correction of that ample power of dis(a) S. 3. Vide infrà, Prec. No. 2, n. (9).

L

DESCENTS.

3 & 4 Will. 4,

c. 106.

(Royal Assent, 29th Aug. 1833.) Admission of

lineal ancestry, half-blood, and attainted blood.

Devise to heir,

and limitation to

grantor, to con

fer an estate by purchase.

CHAP. V. position which is enjoyed by every owner of a descendible

CREDITORS. 3 & 4 Will. 4, c. 104.

(Royal Assent,

29th Aug. 1833.) Real estates subjected to simple contract debts.

estate, they were in a great degree neutralized in practice. So far, indeed, as the peace and well-being of society are concerned, it is often immaterial upon what principle a dry rule of property, the result of positive institution, is settled, though it is always material that the rule should be certain and known. In refining on such rules, we are apt to catch at the shadow of abstract perfection, and lose the solid advantage of an established

canon.

The scantiness of these remarks on so important a statute is supplied by the annexed TABLES OF DEscent, in which an experienced contributor has exhibited the effect of the new law, in contrast with the old, and has furnished the practitioner, engaged in tracing an heir at law, with a safe and perspicuous guide.

The ACT TO RENDER FREEHOLD AND

COPYHOLD

ESTATES ASSETS FOR THE PAYMENT OF SIMPLE AND (a) CONTRACT DEBTS, constitutes the freehold, customaryhold, and copyhold estates of every deceased proprietor, not charged by his will with the payment of his debts, assets, to be administered in equity, for the payment of his debts, as well simple contract as specialty. But preference is given to creditors by specialty binding the heirs; and heirs are not bound by bond or covenant unless expressly mentioned. This enactment will not Liability of pur- throw any impediment in the way of alienation. A purchaser as to ap- chaser from the heir or devisee will not be liable to see plication of purchase-money. his money applied in payment of the debts. On the

other hand, the act will not operate, like a charge of debts created by the testator, to exempt the purchaser from liability to see his money applied in payment of legacies (a) Dele " AND."

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