A wife may be entitled, through marriage, to an interest which is called "dower'1 in certain estates of inheritance of the husband. It was the custom in some boroughs that the widow should be entitled for her dower to all her husband's lands, whereas the general rule was that she should be endowed of one-third part only. But where the custom of gavelkind prevailed, as in Kent, the widow is entitled to a moiety of the land, but only during widowhood.
The right of a woman married since January 1, 1834, is practically a right of succession in intestacy - i.e., if her husband dies without making a will.
The right to dower may, however, be barred by the wife's acceptance of a "jointure" in lieu of dower. Jointure was, strictly speaking, a joint estate limited to husband and wife, now understood to be a sole estate limited to the wife.
For a legal jointure the following is requisite: The provision for the wife must take effect immediately after her husband's death; it must be for her own life at least; it must be made to the widow and not to someone else in trust for her; it must be made in satisfaction of the whole, and not merely of part, of her dower, and it must be expressed to be in satisfaction or settlement of dower.
Freebench is the term given to a widow's dower out of copyholds to which she is entitled by the custom of some manors. It is generally a third for her life, but it is sometimes a fourth part only, and sometimes but a portion of the rent. In many manors the wife takes the whole for her life, in others she takes the inheritance. It is forfeited by a second marriage, and in certain manors in Berkshire and Devon, when lost by in-continency, may be regained if she come into the manor court riding backwards upon a black ram, with his tail in her hand and repeating certain ridiculous and unprintable words, of which we quote the following: "Here I am, Riding upon a black ram,
And for my crincum crancum, Have lost my bincum bancum,
Have done this worldly shame: Therefore, I pray, Mr. Steward, let me have my lands again."
The steward is bound by particular; custom to re-admit her to her freebench. As a custom can only be established by constant observance, it follows that ladies who had forfeited their freebench through their indiscretions must at one time have availed themselves of it; although to our modern ideas it hardly conforms to one requisite of a custom - viz., that it must be reasonable.
Before a.d. 1066 gavelkind was the general custom of the realm; it was retained in Kent because, according to the legend, the Kentish men surrounded William the Conqueror with a moving hood of boughs just after the slaughter at Hastings, and for that service obtained a confirmation of their ancient rights. In transactions relating to Kentish property the custom is never pleaded, but presumed, and the courts are bound to take judicial notice of it. It is one which is of great importance to women, because the land, instead of going to the eldest son only, descends to all the sons equally, and in default of sons, to the daughters in the ordinary manner. Females may inherit, together with males, by representation. Thus, if a man have three sons and purchase land held in gavelkind, and one of the sons dies in the lifetime of his father leaving a daughter, she will inherit the share of her father. Another special custom is that the wife is dowable of one-half instead of one-third of the land.
Also of gavelkind lands the old rhyme runs: "The father to the bough, the son to the plough," meaning that it the father was hung for felony, his son still succeeded to the property, which was not forfeited to the State. Another peculiarity of gavelkind is that an heir in gavelkind who is fifteen years of age may make a contract and sell his estate for money.