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c. 106

1834.

day of January, one thousand eight hundred and thirty- 3 & 4 W. 4, four.

XI. And be it further enacted, That this act shall not Act not to extend to any descent which shall take place on the death extend to

any descent of any person who shall die before the said first day of before Jan. January, one thousand eight hundred and thirty-four.

XII. And be it further enacted, That, where any assur. Limitations ance executed before the said first day of January, one the 1st Jan. thousand eight hundred and thirty-four, or the will of any 1834, to the person who shall die before the same first day of January, person then one thousand eight hundred and thirty-four, shall contain living, shall

take effect any limitation or gift to the heir or heirs of any person, as if the act under which the person or persons answering the description of heir, shall be entitled to an estate by purchase, then the person or persons who would have answered such description of heir, if this act had not been made, shall become entitled, by virtue of such limitation or gift, whether the person named as ancestor shall or shall not be living on or after the said first day of January, one thousand eight hundred and thirty-four.

had not been made.

100

3 & 4 WILL. IV. CAP. CV.

An Act for the Amendment of the Law relating to Dower(6).

[29th August, 1833.] 3 & 4 W. 4, Be it enacted by the King's most Excellent Majesty, by c. 105.

and with the advice and consent of the Lords spiritual and

temporal and Commons in this present parliament asMeaning of sembled, and by the authority of the same, That the words the words in the act :

(6) The present law of dower gives the estate of the husband descending to a surviving wife a right to have as- of course to his heir, there was not signed to her for her life, one-third of likely to be any difficulty in finding all the lands and hereditaments (with a the lands a share of which was to be few exceptions, such as common sans assigned, nor any interference with the nombre and personal annuities) of property of third persons, in making which her husband was seised in law the assignment; besides all which, (that is, had the legal property by there was no fund for maintaining the descent, there being at the same time widow but the real estate. This state no possession) or in fact for an es- of things has for a long period been tate of inheritance in possession at so much changed as to make the any time during the marriage, not- original law of dower highly inconvewithstanding any alienation or dispo- nient. Estates are now frequently sition which the husband may have conveyed away and charged by the made of the estates, or any part of husband, and it is desirable that there them. It does not give dower out of should be a power of so doing free lands to which the husband had a from the burden of dower. The great right, but of which he had not seisin increase, too, of personal property, afin law or in fact. The widow is not fords other means of providing for entitled to take possession of any land widows. for her dower; the assignment is to The legislature long since, by the be made by the heir; and, if he neglect statute 27 Hen. 8, c. 10, provided a it, or do it unfairly, she can compel a method of diminishing the evil to just assignment by legal process, and some extent, by making a jointure of generally recover compensation for a certain description, given before the detention. This law appears well marriage, a bar of the right of dower, adapted to the state of freehold pro- though such jointure may be of inperty which existed at the time when adequate value, and made to the wife it was established, and during a long before she has arrived at the age at period afterwards. Alienation was at which she is enabled to assent to such first prohibited, and it long remained provision. Courts of equity have enrare. A disposition by will, except as larged the remedy, by making some to estates, in a few districts, devisable provisions not strictly within the by custom, was not allowed; so that, terms of the statute bars of dower.

and expressions herein-after mentioned, which in their 3 & 4 W.4, ordinary signification have a more confined or a different

c. 105.

Courts of equity have also obviated the inconveniences arising from dower, and also very materially restricted and impaired the right to dower, by holding that equitable estates, a modification of the ownership of real property which has been introduced since the law of dower was established, and now exists to a very great extent, are not subject to dower; and further, by holding that a purchaser may protect himself against the dower of the vendor's wife, in legal estates, by procuring the assignment to a trustee for himself of an outstanding legal term, (in reality a mere fictitious estate), decisions scarcely reconcilable with principles of justice (as they make the rights of parties liable to be affected by technical rules and fictions); and, contrary to a general principle laid down with respect to equitable estates, —that equity shall follow the lawand at variance with the principle of decisions in the analogous case of the husband's tenancy by the curtesy, which is held to attach to equitable estates.

It may be observed here, that the statutable bar by jointure depends at law, and, in case of the marrige of a female under twenty-one years, in equity also, on the validity of the title to the jointure. It is, therefore, troublesome in questions with purchasers.

In order to defeat the right of dower, in cases not within the statute, and to which the above decisions would not apply, purchasers have long had recourse to the contrivance of taking conveyances of estates in a very artificial form, called a conveyance to uses to bar dower, which, while it confers the whole beneficial ownership, and an absolute dominion over the legal estate, prevents the legal estate from so vesting in the purchaser as to make

the property subject to his wife's dower. This ingenious form of conveyance, which was long in being perfected, and is now nearly universal, is found in practice to be attended with some inconveniences, and, owing to the mistakes of unskilful practitioners, it occasionally leads to serious mischiefs.

By all these means the law of dower is, in most instances, evaded. Where husbands find their estates subject to dower, they very frequently make provision for their widows on the condition of their relinquishing their dower; and sometimes, without knowing that the right to dower exists, or without expressly noticing it, they make provisions for their widows, and at the same time make dispositions of their fee-simple estates inconsistent with the enjoyment of dower by the widow, or which, by clear implication, indicate that dower is not meant to be enjoyed by the widow.

These last modes of defeating dower are found to be, from various causes, very uncertain, and often open to questions; and they are not unfrequent sources of litigation, in which the widow finds herself involved, or is tempted, by the uncertainty of the law, to engage.

The general result is, that the right to dower exists beneficially in so few instances that it is of little value, considered as a provision for widows; and we believe it may be confidently asserted that it is never calculated on as a provision by females who contract marriage, or their friends; yet there is so much of uncertainty in the modes by which dower is prevented, that the actual or possible existence of the right is a very frequent and serious impediment to the transfer of property, and the ascertaining in each case that

3 & 4 W. 4, meaning, shall in this act, except where the nature of the

provision or the context of the act shall exclude such con

c. 105.

it does not exist in the widows of any of the persons through whom the property has passed, or procuring the necessary acts to be done for preventing or barring it where it does or may exist, or securing the future production of the evidence of its non-existence, are the causes of frequent and great delay and expense attending such transfers. Thus, where there is no person who can derive any benefit from the law of dower, that law exists often as a clog to the transfer of property; sometimes as a legal pretext for delaying the performance of a contract, and sometimes as the inevitable cause of, or as a mischievous temptation to, litigation. Generally, we conceive that the right to dower may be said to exist to a great extent to the injury of proprietors and purchasers, and to a comparatively small extent for the benefit of widows, and to some extent also to their injury, in leading them into, or involving them in, litigation.

The true principle, as we think, on which the law of dower was originally established, and on which it has a claim on grounds of justice and policy (without sacrificing the general convenience) to be supported, is, that it should be considered as that interest in an estate of inheritance which the law takes from the heir of a deceased proprietor for the support of his widow, whose claims, in natural justice and policy, appear to stand at least on an equal footing with the claims of the heir. It is so far analogous to the provision which a law established in more modern times has made for the widow out of the husband's personal estate undisposed of by his will. By combining this principle with another of high and perhaps paramount importance, a prin

ciple which the law has carefully established, almost to its fullest extent, viz. that a right of alienation should be inseparably incident to property of every description, we think that the law of dower may be put on a footing more beneficial, on the whole, to widows, and free from nearly all the present inconveniences and mischiefs. The distinction as to dower between the husband's seisin and his mere right, we think, in the present state of things, irrational.

We propose that dower should attach upon all estates of inheritance in possession, excepting the species of property to which dower is not incident; and on property considered in equity as real estate of or to which any husband dies seised or entitled in fact or in law, whether legally and beneficially, or beneficially only, which, if belonging to the wife, would be subject to the husband's curtesy, but subject, like the interest of other persons having partial interests in the inheritance, to any estates, charges, or incumbrances which the husband may have lawfully created, or bound himself to create, and to his debts, so far as they attach on his freehold estates, and as to estates which he can affect by his will, to any disposition, direction, or declaration made by his will, executed so as to affect freehold estate; and that dower should not attach on any other estate.

By this enactment, the artificial distinction between legal and equitable estates will be taken away. On the other hand, the subtle contrivances to which we have referred, will become unnecessary. We

propose that a provision made by will for a widow out of personal estates, shall not deprive her of dower, unless the will expressly or by clear

c. 105.

struction, be interpreted as follows; that is to say, the word 3 & 4 W. 4, “ land" shall extend to manors, advowsons, messuages, and

“ Land." all other hereditaments, whether corporeal or incorporeal (except such as are not liable to dower), and to any share thereof; and every word importing the singular number Number. only shall extend and be applied to several persons or things as well as one person or thing. II. And be it further enacted, That, when a husband Widows to

be entitled shall die beneficially entitled to any land for an interest

to dower out which shall not entitle his widow to dower out of the same of equitable at law, and such interest, whether wholly equitable, or partly

estates.

implication shall so direct; but that any devise of freehold estate shall be held to be free from dower, unless the contrary be declared. And that, as to estates which the husband might by his will dispose of against his wife's right to dower, he may by his will, duly executed, declare that such right shall be discharged without making any further disposition. And we propose that the enactments shall not interfere with the rule of courts of equity, giving widows a preference over other legatees for legacies given to them in satisfaction of dower. And we propose that a declaration in any deed or instrument giving or devising estates of inheritance, may make the estate of the donee or devisee not subject to his wife's dower; but these enactments not to prevent courts from enforcing, on equitable principles, covenants or agreements of husbands not to bar the right to dower, nor

prevent the barring of dower by agreement or settlement, or its forfeiture by adultery.

Owing to the inconveniences of the legal remedies for dower, it has only been enforced in modern times by a suit in equity. This species of suit, on account of the complication of interests in the property, is very frequently tedious and expensive. We endeavoured to devise some method of giving to the wife her dower in a form

which might put her in possession
without legal process; and the mode
of a rent-charge, and that of making
the wife tenant in common of the lands
out of which she was dowable, occurred
to us.

After anxious consideration,
we arrived at the conclusion, that no
benefit could be secured to widows by
any such expedient, without hazarding
injury much more than commensu-
rate to other parties interested in the
lands, and endangering an increase of
litigation. We yet hope that some
improvement of the compulsory me-
thods of effectuating the right to dower
will be found practicable. There are
some antiquated species of dower, as,
dower ad ostium ecclesiæ, and dower
ex assensu patris, now entirely out of

These in substance are very imperfect modes of settlement for barring the common law right to dower: we propose to abolish them.

We not propose, at present, to extend the alterations of the law of dower to gavelkind lands or borough-english lands, or to copyhold or customary lands, as to all which the right to dower or free bench is regulated by a variety of peculiar customs. We deem it expedient to postpone the recommendation of any further alteration of the laws relating to those several tenures, until the whole subject shall come under our view.- 1st Rep. pp. 19-24.

use.

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