Rights of the wife in the lands of her husband.
Dower previously to the act.
(r), Stat.3& 4 Will. IV.c. 105. (s) I.itt ss. 36, 53;2 Black.
Com. 131; I Roper's Husband and Wife,332.
1 Dower could only be released by fine.
Dower independent of husband's debts.
A legal seisin required.
Estate must not be joint.
(t) See Dickin v. Harrier, 1 Drew. & Smale, 284.
(u) Co. Litt. 31 a; 1 Roper's Husband and Wife, 411.
(x) 1 Roper's Husband and Wife, 354.
(y) Ibid. 366; ante, p. 131 et seq.
(z) Co Litt, 31 a.
In order to prevent this inconvenient right from attaching on newly-purchased lands, and to enable the purchaser to make a title at a future time, without his wife's concurrence, various devices were resorted to in the framing of purchase-deeds. The old-fashioned method of barring dower was to take the conveyance to the purchaser and his heirs to the use of the purchaser and a trustee and the heirs of the purchaser: but as to the estate of the trustee, it was declared to be in trust only for the purchaser and his heirs. By this means the purchaser and the trustee became joint tenants for life of the legal estate, and the remainder of the inheritance belonged to the purchaser. If, therefore, the purchaser died during the life of his trustee, the latter acquired in law an estate for life by survivorship; and as the husband had never been solely seised, the wife's dower never arose; whilst the estate for life of the trustee was subject in equity to any disposition which the husband might think fit to make by his will. The husband and his trustee might also, at any time during their joint lives, make a valid conveyance to a purchaser without the wife's concurrence. The defect of the plan was, that if the trustee happened to die during the husband's life, the latter became at once solely seised of an estate in fee simple in possession; and the wife's right to dower accordingly attached. Moreover, the husband could never make any conveyance of an estate in fee simple without the concurrence of his trustee so long as he lived. This plan, therefore, gave way to another method of framing purchase-deeds, which will be hereafter explained (b), and by means of which the wife's dower under the old law is effectually barred, whilst the husband alone, without the concurrence of any other person, can effectually convey the lands.
Dower of gavelkind lands.
Old method of barring dower.
(a) Bac. Abr. tit. Gavelkind (A); Rob. Gav. book 2, c. 2.
The right of dower migth have been barred alto-gether by a jointure, agreed to be accepted by the intended wife previously to marriage, in lieu of dower. This jointure was either legal or equitable. A legal jointure was first authorized by the Statute of Uses (c), which, by turning uses into legal estates, of course rendered them liable to dower. Under the provisions of this statute, dower may be barred by the wife's acceptance previously to marriage, and in satisfaction of her dower, of a competent livelihood of freehold lands and tenements, to take effect in profit or possession presently after the death of the husband for the life of the wife at least (d). If the jointure be made after marriage, the wife may elect between her dower and her jointure (e). A legal jointure, however, has in modem times seldom been resorted to as a method of barring dower; when any jointure has been made, it has usually been merely of an equitable kind: for if the intended wife be of age, and a party to the settlement, she is competent, in equity, to extinguish her title to dower upon any terms to which she may think proper to agree (f). And if the wife should have accepted an equitable jointure, the Court of Chancery will effectually restrain her from setting up any claim to her dower. But in equity, as well as at law, the jointure, in order to be an absolute bar of dower, must be made before marriage.
(b) See post, the chapter on Executory Interests.
(c) 27 Hen. VIII. c. 10.
(d) Co. Litt. 36 b; 2 Black. Com. 137; 1 Roper's Husband and Wife, 462.
(e) 1 Roper's Husband and Wife, 468.
(f) Ibid. 488; Dyke v. Kendall, 2 De G., M. & G. 209.
With regard to women married since the 1st of January, 1834, the doctrine of jointures is of very little moment. For by the act for the amendment of the law relating to dower (h), the dower of such women has been placed completely within the power of their husbands. Under the act no widow is entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his will (i). And all partial estates and interest, and all charges created by any disposition or will of the husband, and all debts, incumbrances, contracts and engagements to which his lands may be liable, shall be effectual as against the right of his widow to dower (k). The husband may also, either wholly or partially deprive his wife of her right to dower by any declaration for that purpose made by him, by any deed, or by his will (l). As some small compensation for these sacrifices, the act has granted a right of dower out of lands to which the husband had a right merely without having had even a legal seisin (m); dower is also extended to equitable as well as legal estates of inheritance in possession, excepting of course estates in joint tenancy (n). The effect of the act is evidently to deprive the wife of her dower, except as against her husband's heir at law. If the husband should die intestate, and possessed of any lands, the wife's dower out of such lands is still left her for her support, - unless, indeed, the husband should have executed a declaration to the contrary. A declaration of this kind has, unfortunately, found its way, as a sort of common form, into many purchase-deeds. Its insertion seems to have arisen from a remembrance of the troublesome nature of dower under the old law, united possibly with some misapprehension of the effect of the new enactment. But, surely, if the estate be allowed to descend, the claim of the wife is at least equal to that of the heir, supposing him a descendant of the husband; and far superior, if the heir be a lineal ancestor, or remote relation (o). The proper method seems therefore to be, to omit any such declaration against dower, and so to leave to the widow a prospect of sharing in the lands, in case her lord shall not think proper to dispose of them.
Dower under the act.
Declaration against dower.
(h) 3 & 4 Will. IV. c. 105. Gavelkind lands arc within the act, Farley v. Bonham, 2 John. & H. 177.
(i) 3 & 4 Will. IV. c. 105, s. 4.
(k) Sect. r>; Jones v. Jones, 4 Kay & J. 861.
(l) Sects. 6, 7, 8. See Fry v. Noble, 20 Bear. 598; 7 De Gex, M. & G. 687.
(m) Sect. 3.
(n) Sect. 2; Fry v. Noble, 20
Beav. 598; Clarice v. Franklin, 1 Kay & J. 266.
The act to facilitate leases and sales of settled estates now empowers every person entitled to the possession or the receipt of the rents and profits of any unsettled estate as tenant in dower, to grant leases not exceeding twenty-one years, in the same manner as a tenant by the curtesy, or a tenant for life under a settlement made after that act came in force (p).
An action for dower is now commenced by writ of summons issuing out of the Court of Common Pleas, in the same manner as the writ of summons in an ordinary action (q); and the proceedings are the same as in ordinary actions commenced by writ of summons (r).
Leases by tenant in dower.
Action for dower.
(o) Sugd. Vend. & Pur. 545, 11th ed.
(p) Stat. 19 & 20 Vict. c. 120, s. 32. See ante, pp. 26, 220.
(q) Stat. 23 & 24 Vict. c. 12G, s. 26.
(r) Sect. 27.