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on this point a concurring opinion appears to be expressed by the high authority just quoted (ƒ).

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facilitate the ac

ceptance of ti

tles.

But though the act has not operated to establish a new But the act may rule in regard to the general period for the deduction of titles, (a result which the framers of the measure never contemplated, and which, indeed, it were vain to expect from the legislature), yet the time allowed by the old law for litigating rights is, on the whole, considerably abridged, and the greater confidence thus inspired in the security of possessions may induce the professional adviser to abate somewhat of his jealousy and rigour.

While we must admit that the former statutes indulged the dilatory claimant with too long a repose, and held out encouragement to stale demands, we may be disposed to think that the new act sometimes approaches the contrary extreme, and is calculated to confer a legislative title by surprise; but, on the other hand, it is no longer possible to gain a title by means of non-claim on a fine with proclamations, which not unfrequently barred the rightful claimant by a very short, and, notwithstanding the proclamations, a very secret process (g).

We now proceed to the ACT FOR THE AMENDMENT OF THE LAW RELATING TO DOWER. The right of a widow to have a third of her deceased husband's freehold lands of inheritance assigned for her dower, had long obstructed the free course of alienation. For, as this right attached in the husband's lifetime, in the shape of a title to dower, it was necessary that the wife should release the land, which she might be unwilling to do; or which, if willing, she could not have done, while fines and recoveries existed, without joining her husband in one of those expensive modes of assurance. Conveyancers exhausted

(f) 2 Sugd. V. & P. 10th ed. 57, 133.

(g) Ante, 140.

Stringent char

acter of the

new law.

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CHAPTER V.

Old limitations to prevent dower;

their ingenuity in devices for preventing or defeating dower. These were founded mainly on the necessity of a sole seisin by the husband of the inheritance in possession, in order to entitle the wife to dower; on the refusal of equity to entertain the claim of dower, (except so far as equity would assist the dowress in the prosecution of her legal right (h), or relieve her in cases of fraud (i)); and on the doctrine of appointments.

Various modes of limitation were from time to time adopted. The first essays were comparatively rude and awkward. The land was conveyed to the owner and a trustee and the heirs of the trustee, thus making the owner and his trustee joint-tenants for life, with the inheritance in the trustee; sometimes, to the owner and a trustee and the heirs of the owner, thus making the owner and his trustee joint-tenants for life, with the inheritance in the owner; sometimes to the owner and a trustee and their heirs, thus making the owner and his trustee joint-tenants in fee; sometimes, to a trustee during the joint lives of the owner and his then wife, with remainder to the owner in fee, thus vesting in the trustee the legal freehold during the existing coverture only; and sometimes, though more rarely, to a trustee and his heirs, their defects. thus vesting the whole legal estate in another. But of these modes all were inconvenient, and some were both inconvenient and insecure. The legal dominion was either divided between the owner and his trustee, or wholly outstanding in the trustee; if the inheritance was limited to the trustee, it might and often did devolve upon an incapacitated heir or devisee; if the inheritance was limited to the owner, the death of the trustee, in the lifetime of the owner, left the owner solely seised in possession, and consequently his wife became dowable.

(h) 2 Rop. Husband and Wife, by Jac. 450, 451, and n.
(i) 1 Sugd. V. & P. 9th ed. 519.

Whichever of the various forms enumerated was used, the concurrence of the trustee or of the person in whom his estate happened to be vested, was necessary on any future alienation to confer a perfect legal title. These methods, therefore, though long employed, especially in provincial practice, from which they are not yet entirely banished, did not satisfy the scientific conveyancer.

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At length the effect of the common limitation to trustees Modern limitations to prevent to preserve contingent remainders (k), in giving a vested dower; estate in remainder, suggested a method of preventing dower, at once more artificial and more effectual (7). This consisted in limiting the land to the owner for life, and on the determination of his estate, by forfeiture or otherwise, in his lifetime, to a trustee and his heirs during the life of, and in trust for the owner, and, on the determination of the estate of the trustee, to the owner and his heirs. By the interposition of the estate of freehold in remainder limited to the trustee, the fee was broken and dower altogether prevented; that estate, too, was exactly commensurate with the object, and was but an inconsiderable deduction from the legal dominion of the owner. Still, this improved form was itself susceptible of improvement. The principle that uses, springing from the exercise of a introduction power of appointment, insert themselves, by relation, in appointment. the instrument creating the power, and take effect, in point of priority, according to the priority of the power (m), was next turned against the wife. In the application of this principle simply, the land was limited to such uses as the owner should appoint, and in default of appointment, to him in fee: his appointment (for the doubt whether the power and the fee could subsist together was shortlived (n)) overreached his fee, and the appointee was in by

(k) Ante, 116.

(7) Fearn. Cont. R. 347, n.
(m) Vide post, Vol. 2, n. (61).

(n) Maundrell v. Maundrell, 7 Ves. 567, 10 Ves. 246.

of a power of

CHAPTER V.

The compound form finally adopted.

Suggestions of further improvements.

title paramount. The conveyance by appointment was, besides, concise and economical;-no lease for a year was wanted. It was not, however, immediately conceded that the dower of the owner's wife shared the fate of the fee to which it was incident, nor, when the efficacy of the appointment to supersede the fee for every purpose was established, did the power alone suffice, inasmuch as if the owner died without exercising it the widow became dowable.

But a combination of the power with the improved form of limitations already noticed, seemed at length to offer both perfect protection against dower and perfect facility of transfer. The land was, therefore, now conveyed to such uses as the owner should appoint, and, in default of appointment, to him for life, and, on the determination of his estate in his lifetime, to a trustee and his heirs for the life of the owner, in trust for him, and, on the determination of the estate of the trustee, to the owner and his heirs. Such are the limitations known under the denomination of the common uses to prevent dower; and so tedious and painful was the process of overcoming an impediment apparently so small.

Alterations in regard to minor points have been sug gested. Of these some are judicious, such as that of con fining the power to an appointment by deed, in order to avoid any question whether a gift by will takes effect under the power or the ownership (o); and that of not clogging the execution of the power with any ceremonies, for the dominion should be as free as possible; and that of limiting the estate of the trustee to his executors and administrators (p), (who take as special occupants), instead of his heirs, for otherwise the trust estate might devolve upon an incapacitated heir, (though since the (0) Butl. Fearn. Cont. R. 347, (p) Watk. Prin. by Morley & Coote, 87.

n.

trustee is not, as we shall presently see, generally deemed a necessary conveying party, this last alteration is rather critical than practical): while others are of a different character, such as that of limiting the ultimate fee, not to the owner, but to his heirs (q), in order that he may take it under a technical rule (r), rather than by the declared intention of the instrument, which is strangely supposed to sin against accuracy in limiting an estate, expressly and directly, to the person for whom it is designed. The form of uses finally adopted in approved practice enabled the owner to alien without the assistance of his trustee, for an execution of the power entirely defeated the subsequent uses. Conveyancers, however, with a seeming want of consistency, usually make the owner at once appoint, by virtue of the power, and convey by lease and release; though, if the appointment be operative, the conveyance by lease and release is redundant : while, if the appointment fail of effect, the lease and release, made without the concurrence of the trustee, would not pass the whole legal fee; and the double assurance seems, in the absence of an express declaration regulating its effect, calculated to raise a question, whether the estate is taken under the power or under the ownership (s).

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defeating

a prior legal es

Besides the device already explained, of limitations Other modes of modifying the fee, there were several means of virtually dower: excluding dower. Thus the existence of a legal term, by obtaining created antecedently to the title of dower, necessarily tate; prevented the dowress from recovering at law, otherwise than with a stay of execution during the term (t). Equity, indeed, would restrain the heir or devisee of the

(q) Butl. Fearn. Cont. R. 347, n. (r) Post, Illustrations, VI. (8) Cox v. Chamberlain, 4 Ves. 631; Roach v. Wadham, 6 East,

189.

(t) See Maundrell v. Maundrell, 7 Ves. 567, 10 Ves. 246.

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