Lib. 6. c. 1, 2. &c. c. 101. 2 Inst. 16. Dower at Common Law. 6. The law of dower was altered in the reign of Henry II. for Glanville states it thus: Every man was bound, both by the civil and ecclesiastical law, to endow his wife, at the time of his marriage, either by naming the dower in particular, or by endowing her generally of all his lands. If he endowed her generally, then the wife was entitled to her dos rationabilis, which was one third of her husband's freehold. If he named a dower which amounted to more than a third, it was not allowed, but reduced to a third. Nor was the wife entitled to dower out of any of her husband's subsequent acquisitions, unless he specially engaged before the priest to endow her of them. These regulations are exactly similar to those contained in the Grand Coustumier of Normandy. 7. Nothing is mentioned in King John's Magna Charta, or the charter of 1 Hen. III. respecting dower; but in the charters of 1217 and 1224 it is declared that dower should consist of a third part of all the lands which the husband held during his life, unless the wife had been endowed of a smaller portion at the church-door. Assignetur autem ei pro dote sua tertia pars totius terræ mariti sui, quæ fuit sua in vita sua, nisi de minori fuerit dotata ad ostium ecclesiæ. 8. There are now subsisting four sorts of dower. The first is dower at common law, which appears to have been finally established by Magna Charta; and is thus described by Littleton, § 36.-"Tenant in dower is where a man is seised of certain lands and tenements in fee simple, fee tail general, or as heir in special tail, and taketh a wife and dieth; the wife, after the decease of her husband, shall be endowed of a third part of such lands and tenements as were her husband's at any time during the coverture; to have and to hold to the same wife in severalty, by metes and Custom. 9. Dower by custom is where a widow becomes Dower by entitled to a certain portion of her husband's lands, 1 Inst. 33 b. in consequence of some local and peculiar custom. In cases of this kind the wife cannot waive the provision thereby made for her, and claim dower at common law, because all customs are equally antient with the common law. Gav. 159. 10. Thus by the custom of Gavelkind, the widow Robinson's is entitled to a moiety of all the lands and tenements 17 Edw. 2. which her husband held by that tenure. This was St. 1. c. 16. formerly called free bench, and is forfeitable by a second marriage, or by having a bastard child. It is ob- Lamb. Arch. servable, that this species of dower is precisely similar 60. to that which existed in the time of the Saxons. 11. Littleton says, that in some burroughs, by § 166. custom, the wife shall have for her dower all the tenements that were her husband's; which is also called free bench. 12. By the custom of most manors of which lands are held by copy of court roll, the widows of copyholders are entitled to a certain part of their husband's lands, and sometimes to the whole; as their dower vide Tit. 10. or free bench. Ostium 13. Dower ad ostium ecclesia is, where a man of Dower ad full age, when he comes to the church door to be Ecclesiæ. married, after troth plighted, endows his wife of a Lit. § 39. certain portion of his land. This is in all probability Bract. Lib. 2. the most antient species of dower. c. 39. 14. Dower ex assensu patris was only a species of Dower ex asdower ad ostium ecclesiæ, made when the husband's sensu Patris. VOL. I. N father was alive, and the son, with his consent expressly given, endowed his wife, at the church door, of a certain part of his father's lands. 15. These two last kinds of dower were not absolutely binding on the wife; for she might refuse them after her husband's death, and claim her dower at common law. Which was probably the reason that they soon fell into disuse. 16. There was another kind of dower, called de la plus belle; which was where a man held some lands by knight service, and others in socage, and the widow occupied the lands held in socage as guardian in socage; if in such a case the widow claimed dower out of the lands held by knight service, the guardian in chivalry might pray that she should be endowed, de la plus belle, of the lands held in socage; in order to prevent dismembering the lands held by knight service, which were appropriated to the service of the realm. The abolition of military tenures has put an end to this kind of dower. 17. It has been stated that curtesy is founded on positive institutions; but dower is not only a civil, but also a moral right. Thus Sir Joseph Jekyll says, "the relation of husband and wife, as it is the nearest, so it is the earliest; and therefore the wife is the proper object of the care and kindness of the husband. The husband is bound by the law of God and man to provide for her during his life; and after his death the moral obligation is not at an end, but he ought to take care of her provision during her own life. This is the more reasonable, as, during the coverture, the wife can acquire no property of her If before her marriage she had a real estate, this by the coverture ceases to be hers; and the right own. thereto, while she is married, vests in her husband. Her personal estate becomes his absolutely, or at least is subject to his control; so that unless she has a real estate of her own (which is the case of but few), she may by his death be destitute of the necessaries of life; unless provided for out of his estate, either by a jointure, or dower. As to the husband's personal estate, unless restrained by special custom, which very rarely takes place, he may give it all away from her. So that his real estate, if he has any, is the only plank she can lay hold of, to prevent her sinking under her distress. Thus the wife is said to have a moral right to dower." TITLE VI. DOWER. CHAP. II. Circumstances required to give a Title to Dower, and what Persons are capable of it. 1. Circumstances required. 5. How it must be proved. 20. Seisin of Gavelkind Lands. 22. 3° Death of the Husband. 23. Who may be endowed. 24. Who are incapable of Dower. 25. Aliens. 27. Jewesses. 28. Women Stolen. SECTION 1. Ces required. LITTLETON's Description points out three cir 1o Marriage. cumstances as absolutely necessary to create a title to dower; namely, marriage, seisin, and death of the husband. 2. With respect to the marriage, it must be between persons capable of contracting together, and duly 1 Iust. 32 a. celebrated; for it is a maxim of law, ubi nullum matrimonium, ibi nulla dos. Id. 33 a. 3. Although the marriage be had before the parties are of sufficient age to consent, yet Lord Coke says, if the wife be past the age of nine years, at the time of her husband's death, she shall be endowed; of what age soever her husband be, although he were but Dyer, 369 a. four years old. Wherein it is to be observed, that although consensus non concubitus facit matrimonium ; and that a woman cannot consent before twelve years, nor a man before fourteen; yet this inchoate and imperfect marriage, from which either of the parties Id. 368 b. |