session (1) (other than an estate in joint-tenancy) (2), then his widow shall be entitled in equity to dower out of the same land (t), so that now dower attaches on an estate contracted for, unless it be otherwise provided by the husband, the purchaser (3). And dower attaches not only on equitable estates, but on estates partly legal and partly equitable, if the interest is equal to an estate of inheritance in possession. The common uses to bar dower therefore, viz. a power of appointment with, in default of appointment, a limitation to a trustee for the owner's life, interposed between limitations to him for life and in fee, would not prevent a woman from being entitled to dower under the act, so far as the estate remains undisposed of by the husband, either by appointment or conveyance: the only question is, had he substantially an estate of inheritance in possession? But the common form declares, that the object of such limitations is to bar the wife of dower, and that declaration would effect that object, although the husband should die seised of the fee. The real property commissioners in respect of equitable estates only intended to make the wife's right to dower coextensive with the husband's right to curtesy (I), and the act does not seem to have accomplished more.

14. And when a husband shall have been entitled to a right of *entry or action in any land, and his widow would be entitled to same if he had recovered possession thereof, see Lyster v. Mahony, 1 Dru. & War. 236.

dower out of the

(t) Sec. 2;

(I) 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.

(1) See Davenport v. Farrar, 1 Scammon, 314; Lewis v. James, 8 Humph. 298; 1 Cruise Dig. Tit. 6, ch. 2, §25, in note.

(2) In Kentucky, a widow may be endowed of an interest in land, which her husband held as a joint-tenant. Davis v. Logan, 9 Dana, 186.

(3) See Brewer v. Vanarsdale, 6 Dana, 204; 4 Kent (6th ed.) 50; Greene v. Greene, 1 Ham. (Ohio,) 538. In the United States a wife is generally held dowable of an equity of redemption. 4 Kent (6th ed.) 44; 1 Cruise Dig. Tit. 6, Dower, ch. 2, §10 in note; Gibson v. Crehore, 5 Pick. 146; Walker v. Griswold, 6 Pick. 416; Fish v. Fish, 1 Conn. 559; Southerin v. Mendum, 5 N. Hamp. 431, 432; Smith v. Eustis, 7 Greenl. 41; Carll v. Butman, 7 Greenl. 102; Cass v. Martin, 6 N. Hamp. 25; Van Vronker v. Eastman, 7 Metcalf, 157; Hartshorne v. Hartshorne, 1 Green Ch. 349; Lund v. Woods, 11 Metcalf, 566.

she is to be entitled to dower out of the same, although her husband shall not have recovered possession thereof; provided that such dower be sued for or obtained within the period during which such right of entry or action might be enforced (u) (1).

15. The above are both provisions extending the wife's right to dower; but the other provisions place the right altogether in the power of the husband. For no widow will be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will (x).

16. All partial estates and interests, and all charges created by any disposition or will of a husband, and all debts, incumbrances, contracts, and engagements to which his land shall be subject or liable, will be valid and effectual as against the right of his widow to dower (y), so that now a contract to sell an estate will bind the wife's right to dower, although her husband die before a conveyance is executed.

17. And a widow will not be entitled to dower out of 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 is declared that his widow shall not be entitled to dower out of such land (≈).

18. And a widow will not be entitled to dower out of any land of which her husband dies wholly or partially intestate when by the will of her husband, duly executed for the devise of freehold estates, he declares his intention that she shall not be entitled to dower out of such land, or out of any of his land (a).

19. And the right of a widow to dower will be subject to any conditions, restrictions, or directions which shall be declared by the will of her husband, duly executed as aforesaid (b).

20. The act then proceeds to provide for the cases in which testamentary provisions by the husband for his wife shall be a bar of her dower (2).

21. Where a husband devises any land out of which his widow

(1) In Massachusetts and Maine a widow is not dowable of wild lands. See 1 Cruise Dig. by Mr. Greenleaf, Tit. 6, Dower, ch. 2, §1 in note, where the cases are cited. The law is otherwise in Michigan. Campbell Appellant, 2 Douglass, 141. (2) In several of the States of the Union, it is expressly enacted that a provision made for the wife, by the will of her husband, shall, in certain cases, and on certain contingencies, bar her dower. The statutes on this subject and the decisions in which they have been interpreted, are very fully cited and referred to, in 1 Cruise Dig. by Mr. Greenleaf, Tit. 6, Dower, Ch. 4, §24 in note; 4 Kent (6th ed.) 58, 59; Thompson v. McGaw, 1 Metcalf, 66.

*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 (c); so that any gift out of lands of which she would be dowable will bar her right in all his lands.

22. But 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, is to defeat or prejudice her right to dower, unless a contrary intention shall be declared by his will (d).

23. And it is provided that nothing in the 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 (e). Nor is anything in the act to interfere with any rule of equity, or of any ecclesiastical court, by which legacies bequeathed to widows in satisfaction of dower are entitled to priority over other legacies (ƒ). Lastly, dower ad ostium ecclesia, and dower ex assensu patris, are abolished (g).

24. In purchasing an estate free from dower by force of the act, it should be ascertained that the seller has not bound himself by agreement not to bar his wife's dower.

25. The alterations suggested by the commissioners in the law of curtesy are mostly of an arbitrary description; and "as there is no very strong reason for altering it," the attempt to do so will probably not be renewed (h).

(c) Sec. 9.

(d) Sec. 10.

(e) Sec. 11.

[*5481

(f) Sec. 12.

(g) Sec. 13.

(h) R. P. C. 1 Rep. 19.

7. Where purchaser's ancestor to be 22. Examination of pedigree.

deemed the purchaser.

9. Descent from brother or sister.

23. Where a son is the purchaser.

25. Where the father is the purchaser.

THE provisions of the new law of descent may be arranged under the following heads: 1. Who is the first purchaser, and where a person takes by purchase; 2. Of descents between brothers and sisters, and to lineal ancestors; 3. Of the preference of males to females; 4. Of the half blood; 5. Of attainder; and lastly, when the act commences.

I. Then in regard to the first purchaser and taking by purchase, 1. The statute enacts, that in every case descent (I) shall be

(I) Land.-The word "land" shall extend to manors, advowsons, messuages, and all other hereditaments, whether corporeal or incorporeal, and whether freehold or copyhold, or of any other tenure, and whether descendible according to the common law, or according to the custom of gavelkind or borough-english, or any other custom, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the same hereditaments and properties or any of them, and to any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, and

(1) The rules of descent of inheritances, in the several States of the Union, have been digested and stated at length, by Mr. Greenleaf, in 2 Cruise Dig. Tit. 29, Descent, Ch. 3, at the end. See also 4 Kent (6th ed.) Lecture 65, where the leading principles of the law of descent in the United States have been stated. In the United States, Mr. Chancellor Kent observes, the English Common law of descents, in its most essential features, has been universally rejected, and each State has established a law for itself. The laws of the individual States may agree in their great outlines, but they differ exceedingly in the details. There is no entire, though there is an essential, uniformity on this subject. 4 Kent (6th ed.) 374.

*traced from the purchaser; and to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require, the person last entitled to the land is, for the purposes of this act, to be considered to have been the purchaser thereof unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same, is to be considered to have been the purchaser unless it shall be proved that he inherited the same; and in like manner the last person from whom the land shall be proved to have been inherited, will in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same (a).

2. It should be kept in view that the explanations in sect. 1, render actual seisin unnecessary in the purchaser or the person to be deemed such, but that all rights and estates, and whether in remainder or not, and whether the party had possession or received the rents or not, are now made the foundation of a right in the first purchaser, from whom the descent is accordingly to be traced (1).

3. The above provision in section 2, renders it necessary to prove a descent at every step in order to exclude the last pos

(a) Sec. 2.

to any possibility, right, or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles, and interests, or any of them, shall be in possession, reversion, remainder, or contingency.

Purchaser. The words "the purchaser" shall mean the person who last acquired the land otherwise than by descent, or than by any escheat, partition, or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent.

Descent.-The word "descent" shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue.

Descendants.-The expression "descendants" of any ancestor shall extend to all persons who must trace their descent through such ancestor.

Person last entitled.-The expression "the person last entitled to land" shall extend to the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits thereof.

Assurance. The word "assurance "shall mean any deed or instrument (other than a will) by which any land shall be conveyed or transferred at law or in equity.

And every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. Sect. 1.

(1) The former English Maxim, that seizina facit stipitem, has been very generally abolished in the United States. A few of the States, however, still retain the principle of it. The reader is referred to the statutes of the several States on this head, as also to 4 Kent (6th ed.) 388 et seq.; 2 Cruise Dig. by Mr. Greenleaf, Tit. 29, Descent, ch. 3, §1 note, vol. 3, p. 327; Cook v. Hammond, 4 Mason, 467; Miller v. Miller, 10 Metcalf, 393; Russell v. Hoar, 3 Metcalf, 187; Williams v. Amory, 14 Mass. 20; Whitney v. Whitney, 14 Mass. 88.