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.
During the life of her husband the wife has no rights over his property, real or personal.
On the death of the husband. - If the husband makes a will he may dispose of all his property real and personal and give them to whom he chooses, even though the wife and children get nothing.
Except that if he was married before 1834, his widow has a right to "dower."
If he dies intestate, whenever he was married, the widow has a right to dower out of his realty and one half or one third of his personalty and possibly a first charge of £500 as stated on p. 92.
History of the widow's right to dower.
(A) At Common Law. - The wife was entitled on the death of the husband to one third of her husband's lands for her life, provided
(1) He was solely seised of an estate of inheritance (see p. 126).
(2) Issue of the marriage capable of inheriting (i) might have been born.
(h) Surman v. Wharton (1891), 1 Q. B. 491. (i) See p. 126.
Thus, if land was granted to A and the heirs of his body by his wife B; and B died; and A married C, C could not have dower out of that land, as her children could not inherit under the entail. It was not necessary that any child should be actually born.
(3) Seisin in law was sufficient. The wife had no power to compel the husband to enter on the land, and therefore she took her dower if he had merely the right to enter.
The right of Dower is a right to have a third part of. the land marked out "by metes and bounds."
It is not an undivided third, as in the case of joint tenancy or tenancy in common: but a definite part of the land, equal to one third in value, is to be marked out for the exclusive use of the widow for her life.
The right to dower could not be defeated by the husband if he had once acquired freeholds of inheritance. The right of his wife to dower thereupon became absolute, and he could not sell the land or dispose of it by will except subject to his wife's right to dower.
(B) In equity.
The courts of equity did not give the wife dower out of equitable estates. Therefore a husband who was intending to acquire land usually took care that the legal estate should be vested in other persons in trust for himself. Thus arose "uses to bar dower."
The most simple form of these was as follows. The husband on purchasing land had it conveyed to trustees in trust for him (as on p. 63) or to a trustee jointly with himself. This prevented him from being "solely" seised; but if the trustee died, dower immediately attached to the land.
Another method was by jointure. If the husband had defeated his wife's right to dower by "uses to bar dower," he usually conveyed sufficient land to himself jointly with his wife to make a provision for her. She would thereby become entitled to the whole of this land by survivorship on the death of her husband (i). When the statute of uses attempted to destroy equitable estates, the hardship of reviving the wife's right of dower in addition to her jointure was recognized, and it was made possible by the Act for the husband to grant a legal jointure to the wife before marriage instead of dower (k), or to grant a jointure after marriage, in which case she could still claim dower if she gave up the jointure (l). These methods were not very satisfactory, and a more complicated form was afterwards invented by which the husband acquired the absolute right to enjoy and deal with the land by deed or will as if it were a fee simple, but carefully avoided a "sole estate of inheritance." This will be fully explained later (see Chapter XXIV (Uses To Bar Dower).).
The Bower Act, 1833 (m). - The object of this statute was to do away with the inconvenient rules by which dower attached indefeasibly to all legal estates, and to give the husband power to remove the wife's right from land which he wished to dispose of, but at the same time to preserve the right of the widow to her third in case the husband did not dispose of the lands and to extend the right to cover equitable estates.
Of the four main provisions of the Act, two deprive the widow of rights, the other two confer benefits upon her.
The Act applies to all women married after the 1st of January, 1834.
There are not many women still living who were married before 1833, and therefore, except in unusual cases, the Dower Act may be assumed to apply.
Provisions of the Act.
(i ) I. Cruise Digest, 188.
(k) 27 Hen. VIII. c. 10.
(l) Statute of Uses, s. 9, and see I. Cruise Digest, p. 192.
(m) 3 & 4 Will. IV. c. 105.
(1) Dower may be barred by a declaration in a deed or in a will (n).
There is no reason now why a husband should bar dower under this provision; for it ceases to attach to any lands which he alienates either during his life or by will under Clause (2) below. At one time conveyancers used to insert such a declaration into every deed; but this is not now done, as it is unnecessary, and may cause hardship by depriving the widow of dower, if the husband dies intestate.
(2) Dower is barred by any absolute disposition of the land, whether by deed or will (o).
Thus the husband can freely dispose of the land, and the widow gets dower, only if he dies intestate as to the particular lands.
(3) Dower shall attach to equitable estates and any estate which practically amounts to a fee simple (p), and
(4) The husband need not have possession of the land (q).
Thus if any of the old methods of barring dower are now used, they will have no effect, for the wife will get dower out of the equitable estates created by them should her husband die intestate.
At the present day therefore the husband can freely dispose of all his land by will: but if he dies intestate the widow gets Dower of one third of his lands for her life, provided her right to dower has not been barred by a declaration under the Dower Act.
A widow entitled to dower cannot exercise the powers of a tenant for life under the Settled Land Acts.
The Intestate's Estates Act, 1890, as already mentioned (p. 92), gives the widow a first charge of £500 out of the realty, and personalty if the husband dies after 890 and without issue: but this is not "dower."
(n) Ss. 6 and 8. (p) S. 2.
(o) S. 4. (q) S. 3.