This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
It is no longer necessary to convey lands to a husband in such a way as to defeat his wife's right of dower, except in the. very rare case of a man who was married before 1833, and whose wife is still living. But it is necessary to know the object and effect of conveyances framed for this purpose, for such conveyances frequently appear at the present day upon the proof of title on a sale of land.
Dower, as we have seen (p. 128), was the right of a wife after the death of her husband to one third of his lands for her life; and this right attached to any land of which the husband became "solely seised of an estate of inheritance" at any time during the marriage. If the husband wished to sell the land, he could only sell it subject to the wife's right of dower.
Older methods of barring dower are no longer of very great importance. They included the following: -
(i.) A, the husband, having agreed to buy land, it was conveyed "to B, C, and D to the use of A," or after the Statute of Uses, "unto and to the use of B, C, and D in trust for A." Thus A had no estate at law, and equity did not enforce dower.
The inconvenience of this was that A could not sell the land without the concurrence of B, C, and D, and if they were fraudulent, they might be able to sell the land to a bona fide purchaser without the knowledge or consent of A.
(ii.) The land might be conveyed to the husband, A, jointly with B and C; then A was not "solely seised," and the dower would not attach
One disadvantage of this was that, if B and C died, A became solely seised and dower attached to the land.
(iii.) By means of a jointure settled on the wife before marriage, see p. 130.
The object of lawyers was to invent a form of conveyance under which the husband should have full power to dispose of the land by himself during his life, or by his will, and that if he died intestate it should go to his heirs; but that he should not have "a sole estate of inheritance."
A method of doing this was invented by Mr. Fearne towards the end of the eighteenth century by making use of a general power of appointment as follows: -
A, the husband, is buying land. The land is conveyed to X to the following uses: -
(1) To the use of such persons as A shall by deed or will appoint.
This gave A full power to dispose of the whole fee simple; under the Statute of Uses, but did not give him any estate in the land.
(2) In default of appointment, to the use of A for life.
This gave A a legal estate of freehold, but not "of inheritance."
Pausing here, A has full power to dispose of the land, and has a freehold estate; but if he died without a will, the land would not go to his heirs.
Therefore an estate must be given "after A's death to his heirs."
But the effect of a gift "to A for life and after his death to his heirs " would, by the rule in Shelley's case, give A a fee simple in remainder, and his life estate would merge in the fee simple and give A a fee simple in possession, which would be an "estate of inheritance."
To prevent this some rested remainder must be inserted between the life estate and the gift to the heirs; and it should be, if possible, a vested remainder which was not likely to take effect. This was done as follows: -
(3) If A's estate should determine by merger forfeiture or surrender during A's life, then to the use of T during the rest of A's life, in trust for A.
This is a vested remainder in T, for T is ready to take the land immediately A's life estate shall determine in any way except by his death. But it is not very likely to happen; and if it does, T must hold his estate in trust for A.
(4) Remainder to the use of the heirs of A.
This form was used some years even after the Dower Act, 1833, if the husband was married before 1833.
If the husband was married after 1833 it was usual (though unnecessary, see p. 131) to put in to the deed a declaration against dower.
If it was not known when he was married, both forms were used.
Now it is assumed that the husband was not married before 1833, and neither form is used; the land being conveyed direct to the husband in fee simple, for dower does not now attach to the land unless the husband dies intestate.