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were purchased and aliened by the husband at the time when she was barred of her action of dower. This decided the point at law, and of course equity must in this respect follow the law (ƒ). The Author's impression therefore was, that where an estate would be subject to the dower of the vendor's wife, if she were not barred by a jointure, whether legal or equitable, the vendor must either procure his wife to levy a fine of the estate at his own expense, or must produce a satisfactory title to the jointure lands. And this was no more than is constantly required where an estate has been taken in exchange. The vendor is compelled to produce the title, not only to the estate sold, but also to the estate given *by bim in exchange. The same principle applied to the case under consideration. But this is only material with reference to cases not within the late act, for this question will not arise under the new act as regards purchasers, because every conveyance will bar the wife's dower, so that although evicted of her jointure, she could not claim her dower against a purchaser of other lands. A fine, we must remember, cannot now be levied; although a substitute for it is provided.

[3a. The usual mode of barring dower, in the United States, by the voluntary act of the wife, is, by her joining with her husband in a deed of conveyance of the land, containing apt words of release or grant of dower on her part. In some of the States, it is necessary that the wife should acknowledge the deed privately, before a magistrate, apart from her husband, in the mode prescribed by the statutes of those several States. In other States, no such acknowledgment is required. This practice is probably coeval with the settlement of the country; and it has been supposed to have taken its rise in Massachusetts, from the Colonial act of 1641 (1). In Massachusetts, the wife may bar her dower in land by her husband joining her in a separate release, subsequent to his deed of it, or to

(f) Gervoyes's case, Mo. 717, pl. 1002; and see 4 Co. 3 b; 4 Bro. C. C. 506, n.; Mansfield's case, Iarg. n. 81,

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Co. Litt. 33, a.; Simpson v. Gutteridge, 1 Madd. 609. See the observations in the last edition of this Work.

(1) Ancient Charters, 99; 4 Kent (6th ed.) 59; Catlin v. Ware, 9 Mass. 218; Lufkin e. Curtis, 13 Mass. 223; Powell v. Monson & B. Manuf. Co. 3 Mason, 347, 351; Hall v. Savage, 4 Mason, 273; Leavitt v. Lamprey, 13 Pick. 382; Priest v. Cummings, 16 Wendell, 617; Markham v. Merrett, 7 Howard (Miss.) 437; Thomas v. Gammel, 6 Leigh, 9. When the statute has directed the form of acknowledgment it must be strictly pursued, or the act of relinquishment will be void. Kirk v. Dean, 2 Binn. 341; Clarke v. Redman, 1 Blackf. 379; Scanlan v. Turner, 1 Bailey, 421.

its being taken in execution (1). In that State, the wife may also join the guardian of her husband, in a deed for the like purpose (2). If the wife was not of full age at the time of executing a deed releasing her dower (3); or if the deed does not contain apt words, showing her intention to relinquish her dower, she will not be barred therefrom, though she has signed and sealed the deed, and made the statute acknowledgment (4). It is no objection that the deed of the wife is a mere release, "in token of her relinquishment of dower," containing no words of grant; for it operates by way of estoppel, and not by way of grant (5).]

4. Equity appears to consider any provision, however inadequate or precarious it may be, which an adult previously to marriage accepts in lieu of dower, a good equitable jointure (g); and will in some cases even imply an intention to bar the wife of her dower; thus, where a provision was made for the livelihood and maintenance of the wife after her husband's death, although it was not expressed to be in bar of dower, yet it was holden to be a bar in equity, on the implied intention of the parties (h) (6). This rule may still operate.

5. But in a case where a leasehold estate was settled before marriage upon the intended wife, "in recompense and bar of dower, and for a provision for her," and the husband had no real estate, it was held that the wife's right to thirds was not barred (i). For, as the declared object was to bar her of dower, no implication could

(9) Jordan v. Savage, Bac. Abr. Jointure, (B) 5; Charles v. Andrews, 9 Mod. 152; Williams v. Chitty, 3 Ves. jun. 545; 4 Bro. C. C. 513. This was admitted by the counsel for the appellants in Drury v. Drury; see 5 Bro. P. C. 581; in re Heron, 3 Ir. Eq. Rep. 589; 1 Fla. & Kel. 330.

(h) Vizard v. Longdale, 3 Atk. 8, cited; reported 2 Kel. Cha. Ca. 17, nom.

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(1) Fowler v. Shearer, 7 Mass. 14, 20; Stearns v. Swift, 8 Pick. 530; Lithgow v. Kavenagh, 9 Mass. 161, 173; Shaw v. Russ, 14 Maine, 432; Rev. Stat. Mass. Ch. 60, $7. But the wife cannot bar her right of dower by any release made to the husband during coverture. Rowe v. Hamilton, 3 Greenl. 63.

(2) Rev. Stat. Mass. Ch. 60, §7.

(3) Oldham v. Sale, 1 B. Monroe, 77.

(4) 4 Kent (6th ed.) 49; Catlin v. Ware, 9 Mass. 218; Lufkin v. Curtis, 13 Mass. 223; Leavitt v. Lamprey, 13 Pick. 382; Stevens v. Owen, 25 Maine, 94. (5) Stearns v. Swift, 8 Pick. 532.

(6) 1 Cruise Dig. by Mr. Greenleaf, Tit. 7, Jointure, ch. 1, §26 et seq.; Gelzer v. Gelzer, 1 Bailey Eq. 324; Hastings v. Dickinson, 7 Mass. 153; Ambler v. Norton, 4 Hen. & Munf. 23.

be admitted, that she was to be barred of thirds also; the direction that the settlement was for a provision for her, only expressed the effect of the settlement, and could not be deemed evidence of an intention to bar her of a right which was not named. This of course is still law.

6. So, as infants are within the statute of Hen. 8 (k), and may be barred of dower at law, they may in like manner be barred by an equitable jointure () (1); and the late act does not alter the law in this respect except so far as it authorizes the husband alone to bar his wife's dower, whether an infant or an adult.

*7. But under the old law an equitable provision in bar of dower will not bind an infant, unless it be as certain a provision as her dower. Therefore a settlement of an estate upon an infant for life, after the death of her husband and any third person, will not be a good bar, as the stranger may survive the wife (m). So a provision that the personal estate shall go according to the custom of London, in bar of dower, or any provision of that nature, will not be deemed an equitable bar of dower to an infant, on account of the uncertainty and precariousness of the provision (n).

8. Supposing an equitable jointure to be merely charged on stock vested in trustees, and the wife to have been married under age, there seems reason to contend, that if the fund should be wasted by the trustees, equity would not restrain the wife from proceeding for her dower; and in that case a purchaser would certainly have been entitled to a fine (I).

9. In Caruthers v. Caruthers (0), Lord Alvanley, then Master of the Rolls, addressing himself to what was and what was not an

(k) Drury v. Drury, or, Earl of Bucks . Drury, 5 Bro. P. C. 570; 4 Bro. C. C. 506; n.; Wilmot, 177.

(1) See the cases, post, n. (m). (m) Caruthers v. Caruthers, 4 Bro. C. C. 500. [Perkins's ed. notes.] See Corbet v. Corbet, 1 Sim. & Stu. 612, which

was affirmed by the Lord Chan. upon appeal.

(n) Smith v. Smith, 5 Ves. jun. 189; 5 Russ. 254.

(0) 4 Bro. C. C. 500. See 5 Ves. jun.

192.

(I) This point does not appear to be decided either by Drury v. Drury, or Williams v. Chitty.

(1) 4 Kent (6th ed.) 55; M'Cartee v. Teller, 2 Paige, 511; Shaw v. Boyd, 5 Serg. & Rawle, 309. In Ohio, Missouri, Rhode Island, Kentucky, and Virginia, if the jointure, or other estate conveyed in lieu of dower, was made while the woman was an infant, or after marriage, she may waive it after her husband's death, and claim her dower. In Maine, Massachusetts, New York, Indiana, and Arkansas, no jointure will prevent the claim of dower, unless it was made before the marriage, and with the consent of the wife expressed in the deed. 1 Cruise Dig. by Mr. Greenleaf, Tit. 7, Jointure, ch. 1, §35 note, §38 note; Vance v. Vance, 21 Maine, 364; Hastings v. Dickinson, 7 Mass. 153.

equitable bar of dower to an infant, put the case of a charge in bar of dower made upon an estate with a bad title, and held that it would be no bar. Therefore, whatever opinion might be entertained on the general question, a purchaser formerly required to be satisfied of the title to the lands upon which the equitable jointure of a feme covert married under age was charged. And where the settlement rested in covenant, the purchaser could not safely complete his contract until the covenant was actually performed; for an alienation by the husband of the fund out of which the jointure was to arise, would have been deemed an eviction of the fund, and consequently the wife would be let in for her dower (p) (1).

10. But none of these points (q) can affect a purchase within the operation of the late act, for the conveyance will bar the seller's wife of her dower without regard to the question whether she has any jointure or a valid binding one. And as a man can by his declaration alone bar his wife's right, any provision, however infirm, and although the wife is an infant, which is declared to be in bar of dower, will no doubt be held to be so.

11. The foregoing observations apply to the law as it stood *before the 3 & 4 Will 4, c. 105. That act does not affect copyholds, as the freebench in them is generally subject to the husband's power of disposition, nor does it extend to the dower of any widow who married on or before the 1st January 1834, and it is not to give to any will, deed, contract, engagement, or charge executed, entered into, or created before that day, the effect of defeating or prejudicing any right to dower (r). It is, therefore, still necessary to know what the law is with reference to the cases to which the act does not extend. And it must be borne in mind, that as to widows within the exception, their rights are saved in estates acquired by their husbands, even after the 1st January 1834. This will render it necessary for a long period to come to guard, by the form of conveyances to purchasers married on or before the 1st January 1834, against dower in the old way, which may be effected so as to leave the fee in the purchaser if he survive his wife.

(p) Drury v. Drury, 4 Bro. C. C. 506, n.; Power v. Sheil, 1 Moll. 296.

(g) Pl. 10, 11, 12.
(r) Sec. 14.

(1) This subject of jointures has been regulated by statute in several of the States of the Union. 1 Cruise Dig. by Mr. Greenleaf, Tit. 7, Jointure, ch. 1, §38 in note, where the statutes are referred to. ib. §35 in note. See Hastings v. Dickinson, 7 Mass. 153; Ambler v. Norton, 4 Hen. & Munf. 23; Andrews v. Andrews, 8 Conn. 79.

12. It is usual in all cases of conveyances to a purchaser, to insert a declaration depriving his wife of dower, even where there is a limitation to bar the dower of a wife married on or before the 1st January 1834, in order to provide against a future marriage; but this practice, without express instructions, seems not to be correct it was quite correct to prevent dower from attaching, whilst the husband's power of disposition either by act inter vivos or by will was inoperative against his wife's dower; but now that he can charge, sell, convey, or devise his estate free from dower, or put an end to it by any deed, it would not be right, without the owner's authority, by a declaration in the conveyance to prevent dower altogether. Why should the wife's dower be guarded against any more than a descent to a distant unknown relative ? Neither can take contrary to the owner's disposition. The real property commissioners, in their first report (s), state the true principle on which the law of dower is to be supported to be, that it is an interest 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, and they thought that by combining this principle with that of a right of alienation inseparably incident to property of every description, the law of dower might be put on a footing more beneficial on the whole to widows, and free from nearly all the then existing inconveniences and mischiefs. These considerations may induce conveyancers not as a matter of course to deprive a wife of her chance of dower. If the owner allow his *estate to descend, the claim of the widow is equal to that of issue, and superior to that of a lineal ancestor or a distant relation.

13. The right of dower of women married after the 1st January 1834, is placed on altogether a different footing. It is enacted, that when a husband shall die, beneficially entitled to any land (1) for an interest which shall not entitle his widow to dower out of the same at law, and such interest, whether wholly equitable, or partly legal and partly equitable, shall be an estate of inheritance in possession, or equal to an estate of inheritance in pos

(8) P. 18.

(I) The word "land" shall extend to manors, advowsons, messuages, and 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 only shall extend and be applied to several persons or things as well as one person or thing; sect. 1.

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