[29th August, 1833.]

(b) The present law of dower gives to a surviving wife a right to have assigned to her for her life, one-third of all the lands and hereditaments (with a few exceptions, such as common sans nombre and personal annuities) of which her husband was seised in law (that is, had the legal property by descent, there being at the same time no possession) or in fact for an estate of inheritance in possession at any time during the marriage, notwithstanding any alienation or disposition which the husband may have made of the estates, or any part of them. It does not give dower out of lands to which the husband had a right, but of which he had not seisin in law or in fact. The widow is not entitled to take possession of any land for her dower; the assignment is to be made by the heir; and, if he neglect it, or do it unfairly, she can compel a just assignment by legal process, and generally recover compensation for the detention. This law appears well adapted to the state of freehold property which existed at the time when it was established, and during a long period afterwards. Alienation was at first prohibited, and it long remained rare. A disposition by will, except as to estates, in a few districts, devisable by custom, was not allowed; so that,

the estate of the husband descending of course to his heir, there was not likely to be any difficulty in finding the lands a share of which was to be assigned, nor any interference with the property of third persons, in making the assignment; besides all which, there was no fund for maintaining the widow but the real estate. This state of things has for a long period been so much changed as to make the original law of dower highly inconvenient. Estates are now frequently conveyed away and charged by the husband, and it is desirable that there should be a power of so doing free from the burden of dower. The great increase, too, of personal property, affords other means of providing for widows.

The legislature long since, by the statute 27 Hen. 8, c. 10, provided a method of diminishing the evil to some extent, by making a jointure of a certain description, given before marriage, a bar of the right of dower, though such jointure may be of inadequate value, and made to the wife before she has arrived at the age at which she is enabled to assent to such provision. Courts of equity have enlarged the remedy, by making some provisions not strictly within the terms of the statute bars of dower.

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

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

"Land."

to dower out

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 to 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 commensurate to other parties interested in the lands, and endangering an increase of litigation. We yet hope that some improvement of the compulsory methods 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 use. 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.

estates.