CH. 4, s. 3. or by treason or felony. PT. II. T. 5, behaviour and gross misconduct, she thereby loses her dower; unless the husband afterwards takes her back, without coercion of the church (a). By 5 & 6 Edw. 6, c. 11, the widows of those who are attainted of high treason or petit treason, and women who are attainted of treason or felony, shall have no dower (b). Petit treason, however, has been abolished by the stat. 9 Geo. 4, c. 31, s. 2; which provides that homicides which formerly amounted to that offence, shall be deemed in future to be murder only (c). 519. PT. II. T. 5, CH. 4, s. 4. Modes of or barring dower in equity. Gift of a trust estate. nuptial SECTION IV. Of the Modes of preventing or barring Dower, in Equity, independently of the Dower Act. Independently of the provisions of the Dower Act, there are other modes of making a provision for a woman in preventing equity, which will either prevent the title to dower from ever arising, or will bar it after it has arisen. 520. Thus: A trust estate, or an ante-nuptial agreement to settle Ante- lands as a jointure, is a good equitable jointure (đ). And agreement where, by a settlement made on the marriage of an adult female, "for providing a competent jointure and provision for maintenance" for her, it is agreed that the husband shall give a bond to the trustees, such a settlement is an equitable bar of dower; and although the money secured by the bond be not paid, yet the wife has no title to dower of, nor any lien on, after-acquired lands of the husband (e). 521. to settle lands. Bond. A widow may be barred of her dower by election. 522. (a) See Co. Litt. 32 a, b; 1 Cruise T. 6, c. 1, § 17, and c. 4, § 5-11; Bostock v. Smith, 34 Beav. 57. (b) Co. Litt. 37 a, 392 b; 2 BI. Com. 130-1; 1 Cruise T. 6, c. 4, $ 2, 4. (c) 4 Steph. Com. 148, 214, n. (d) 1 Cruise T. 7, c. 1, § 13; Co. Litt. 36 b, n. (5). (e) Dyke v. Rendall, 2 De Gex, M. & G. 209. CH. 4, s. 4. Election. provision it elected by the widow. election. Before the Dower Act, a provision made for a woman PT. II. T. 5, after marriage in lieu of dower, was only a bar to dower if she chose to accept it after her husband's death (f). 523. Post-nuptial In order to deprive a widow of her dower by election, must be shown that the testator intended to dispose of his Rules as to property in a manner inconsistent with his wife's right to dower (g); or that there is, on the face of the will, strong ground for holding that she was not intended to take both her dower and the benefits given her by the will (h). Hence, a bequest to the widow, merely affecting the personal assets of the testator, without any declaration that it shall be in bar of dower, does not raise a case of election, because there is no inconsistency between the dower and the bequest (i). Nor does the gift of an annuity or rent charge to her out of the particular estate in which she is dowable, unless the estate is insufficient both to pay the annuity and to meet the dower. Nor does such a gift out of other estates, unless the provisions or limitations in the will are quite inconsistent with a right to dower (j). But where a testator, after contracting to sell part of his real estate, devises all his real and personal estate to trustees, and directs them to complete the contract, and to sell and convert into money all his real and personal estate, and out of the interest of the monies to arise from the sales to pay an annuity to his wife for her life, and he empowers his trustees to lease such parts of his real estate as should not be sold, the widow is bound to elect between the benefits given her by the will and her dower, which is inconsistent with the contract and the power of leasing (k). (f) 2 Bl. Com. 138; 1 Cruise T. 7, c. 1, § 22, and c. 3, § 2; Co. Litt. 36 b. (g) Parker v. Sowerby. 4 D. M. & G. 326; Wetherell v. Wetherell, 4 Gif. 51. And see cases cited 1 Jarm. Wills, 2nd ed. 382-391. (h) Thompson v. Burra, L. R. 16 (i) 2 Rop. Leg. by White, 1617. (k) O'Hara v. Chaine, 1 Jones & CH. 4, s. 4. PT. II. T. 5, And so where an annuity is given to the wife, and powers to sell, lease, and cut timber are vested in trustees, the wife is bound to elect between the annuity and her dower (1). But mere powers or trusts for sale are not inconsistent with the widow's right to dower, as a sale is constantly made subject to that right (m). 524. Devises expressly made in lieu of dower, have operated so as to give the widow an election (n); but where they have not been declared to be in lieu, or satisfaction, or bar of dower, they cannot in general be averred to be given for that purpose (o), especially if less beneficial than dower (p). 525. If the husband exchanges his lands for others, his widow shall have her election to be endowed either of the lands given or of those taken in exchange; because her husband was seised of both during the coverture (q). 526. Before a widow can be bound by election, she must be informed of the nature and extent of her rights as widow. And therefore where she accepts the benefits given her by her husband's will, in ignorance of her rights as widow, she will not be precluded from claiming her dower, notwithstanding a lapse of several years (r). 527. PT. II. T. 5, SECTION V. Of the preventing, barring, or affecting Dower, under the I. By the stat. 3 & 4 Will. 4, c. 105, dower may be wholly prevented from arising, or be barred, at law and (1) Parker v. Sowerby, 4 D. M. & G. 321; Linley v. Taylor, 1 Gif. 67. (m) Bending v. Bending, 3 K, & J. 257. (n) 1 Cruise T. 6, c. 4, § 22. (0) 1 Cruise T. 6, c. 4, § 17. (q) Id. c. 2, § 12. (r) Sopwith v. Maughen, 30 Beav. 235. CH. 4, s. 5. in equity, in various ways: namely, 1. By an absolute PT. II. T. 5, disposition of the property by any deed or will of the husband. 2. By a declaration in the deed of conveyance to him, or in any deed or will executed by him. 3. By a devise to or for the widow, of any real estate whereof she would otherwise have been dowable, or any interest therein. 528. Thus: tion. 1. By s. 4, no widow shall be entitled to dower out of 1. By alienaany land (s) which shall have been absolutely disposed of by her husband in his lifetime, or by his will." 529. ration. 2. By s. 6, a widow shall not be entitled to dower out 2. By declaof any land of her husband, when, in the deed by which such land was conveyed to him, or by any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land." And by s. 7, "a widow shall not be entitled to dower out of any land of which her husband shall die wholly or partly intestate, when, by the will of her husband, duly executed for the devise of freehold estates, he shall declare his intention that she shall not be entitled to dower out of such land, or out of any of his land." 530. 3. By s. 9, "where a husband shall devise any land out 3. By a of which his widow would be entitled to dower if the same were not so devised, or any estate or interest therein, to or for the benefit of his widow, such widow shall not be entitled to dower out of or in any land of her said husband, unless a contrary intention shall be declared by his will" (t). But by s. 10, "no gift or bequest made by any husband to or for the benefit of his widow of or out of his personal estate, or of or out of any of his land not liable to dower, shall defeat or prejudice her right to dower, unless a contrary intention shall be declared by his will." 531. (s) By s. 1, "land" extends to other hereditaments liable to dower. (t) See Lacey v. Hill, L. R. 19 Eq. 346. devise. PT. II. T. 5, II. By the same statute, dower may also be affected in several other ways. Thus by s. 5, "all partial estates and interests, and all charges created by any disposition other ways. or will of a husband, and all debts, incumbrances, con II. Modes of affecting dower in III. Agreement not to bar dower. IV. Saving clause. tracts, and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower." And by s. 8, "the right of a widow to dower shall be subject to any conditions, restrictions, or directions which shall be declared by the will of her husband, duly executed as aforesaid.” 532. Notwithstanding the 5th section, and the enactment of the stat. 3 & 4 Will. 4, c. 104, which makes real estate assets for payment even of simple contract debts, dower or freebench has priority over a deceased person's mere creditors, who had no charge in his lifetime on his land (u). But a widow takes subject to a mortgage created by her husband (v). 533. III. By s. 11, of the Dower Act, "nothing in this Act contained shall prevent any court of equity from enforcing any covenant or agreement entered into by or on the part of any husband not to bar the right of his widow to dower out of his lands, or any of them." 534. IV. By s. 14, "this Act shall not extend to the dower of any widow who shall have been or shall be married on or before the 1st day of January, 1834, and shall not give to any will, deed, contract, engagement, or charge executed, entered into, or created before the said 1st day of January, 1834, the effect of defeating or prejudicing any right to dower." 535. In consequence of this section, the dower of a woman married since the 1st of January, 1834, is not excluded by the ordinary limitations to bar dower in a conveyance before the Act, even though the words be inserted-"to (v) Jones v. Jones, 4 K. & J. 361. (u) Spyer v. Hyatt, 20 Beav. 621; and see Jones v. Jones, 4 K.& J. 363. |