idiot, the husband shall not be tenant by the curtesy of her lands, for the king by prerogative is entitled to them the instant she herself has any title; and since she could never be rightfully seised of the lands, and the husband's title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy." 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of its being born alive; but it is not the only evidence.* The issue also must be born during the life of the mother; for if the mother dies in labour, and the Cæsarean operation is performed, the husband in this case shall not be tenant by the curtesy: because, at the instant of the mother's death, he was [ 128 ] clearly not entitled, as having had no issue born, but the land descended to the child, while he was yet in his mother's womb; and the estate being once so vested, shall not afterwards be taken from him. In gavelkind lands a husband may be tenant by the curtesy without having any issue." But in general there must be issue born, and such issue as is also capable of inheriting the mother's estate. Therefore if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male. And this seems to be the principal reason why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised: because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife; but no one, by the old rule of law, could be heir to the ancestor of any land, whereof the ancestor was not actually seised; and therefore, as the husband had never begotten any issue that could be heir to those lands, he should not be tenant of them by the curtesy. And hence we may observe, with how much nicety and consideration the old rules of law were framed ; * Co. Litt. 30; Plowd. 263. But as to the marriage of an idiot, see Rights of Persons, [438]. * Dyer, 25; 8 Rep. 34. y Co. Litt. 29. z Co. Litt. 30; and ante, p. 87. a Litt. s. 52. b Co. Litt. 29. c Co. Litt. 40. But now see 3 & 4 W. 4, c. 106, s. 2, and post, ch. 16. dower. and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture; for, whether it were born before or after the wife's seisin of the lands, whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy. The husband by the birth of the child becomes (as was before observed) tenant by the cur tesy initiate, and may do many acts to charge the lands: but his estate is not consummate till the death of the wife; which is the fourth and last requisite to make a complete tenant by the curtesy.f [129] IV. An estate in dower is where the husband of a woTenant in man is entitled to an estate of inheritance, and dies. In this case, the wife shall have the third part of all the lands and tenements whereof he was entitled at any time during the coverture, to hold to herself for the term of her natural life.s Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos: which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance: nor indeed is there any thing in general more different than the regulation of landed property according to the English and Roman laws. Dower out of lands seems also to have been unknown in the early part of our Saxon constitution; for, in the laws of king Edmond," the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow d Co. Litt. 29. Ibid. The Real Property Commissioners in their first Report proposed to make some alterations in the law of curtesy, the principal of which were to abolish the rule that the issue must be born alive, and to restrict the estate to an undivided moiety of the lands; and a bill was brought in in the Session of 1831, (printed in 2nd vol. of the Legal Observer, p. 310,) to carry these recommendations into effect. It was however suffered to drop, and it may therefore be considered that the law on this subject will not be unsettled. g Litt. s. 36. h Wilk. 75. became entitled to a conditional estate in one half of the lands; with a proviso that she remained chaste and unmarried; as is usual also in copyhold dowers, or free bench. Yet somek have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feudal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens, tertia,' and dotalitium) by the emperor Frederick the Second; who was contemporary with our king Henry III. It is possible, therefore, that it might be with us the relic of a Danish custom: since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals." However this be, the reason, [130] which our law gives for adopting it, is a very plain and sensible one; for the sustenance of the wife, and the nurture and education of the younger children.° In treating of this estate, let us, first, consider, who may be endowed; secondly, of what she may be endowed : thirdly, the manner how she may be endowed; and fourthly, how dower may be barred or prevented. 1. Who may be endowed. She must be the actual wife 1. Who may of the party at the time of his decease. If she be divorced be endowed. à vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos.P But a divorce à mensa et thoro only doth not destroy the dower ; no, not even for adultery itself by the common law. Yet now by the statute Westm. 2, if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her. It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy: but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. By the ancient law the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde," that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may; though Britton" gives it another turn; viz. that it is presumed that the wife was privy to her husband's crime. However, the statute 1 Edw. VI. c. 12, abated the rigour of the common law in [ 131 ] this particular, and allowed the wife her dower. But a 2. Of what a wife may be endowed. Alterations made by the 3 & 4 W.IV. c. 105. subsequent statute* revived this severity against the widows of traitors, who are now barred of their dower, but not the widows of felons. An alien also cannot be endowed, unless she be queen consort; for no alien is capable of holding lands. The wife must be above nine years old at her husband's death, otherwise she shall not be endowed : though in Bracton's time the age was indefinite, and dower was then only due si uxor possit dotem promereri, et virum sustinere." 2. We are next to enquire, of what a wife may be endowed; and in this respect considerable alterations have been recently made in this estate by the stat. 3 & 4 W. IV. c. 105, which however does not extend to the dower of any widows who shall have been married on or before the 1st of January, 1834, or to any will, deed, contract, or engagement entered into or executed before that time. With respect therefore to such, the old law is still in force, which we shall proceed to state. A widow married before the 1st of January, 1834, is entitled to be endowed of all lands and tenements of which her husband was seised in fee-simple or fee-tail at any time during the coverture; and of which any issue, which she might have had, might by possibility have been heir. Therefore, if a man, seised in fee-simple, had a son by his first wife, and after married a second wife, she shall be endowed of his lands; for her issue might by possibility have been heir on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body begotten on Jane his wife; though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed; for no issue, that she could have, could by any possibility inherit them. A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable; for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands: which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually seised in deed.f The seisin of her husband, for a transitory instant only, [132] when the same act which gives him the estate conveys it also out of him again, (as where by a fine, land was granted to a man, and he immediately rendered it back by the same fine,) such a seisin will not entitle the wife to dower for the land was merely in transitu, and never rested in the husband; the grant and render being one continued act. But, if the land abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof.h It was also well d Litt. s. 36, 53. e Ibid. s. 53. f Co. Litt. 31. 8 Cro. Jac. 615; 2 Rep. 67; Co. Litt. 31. h This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but the son was supposed |