dower (i. e. the rights of all claimants in respect of the dower) of every widow married on or before the 1st of January, 1834, (i. e. every woman married on or before that day, and being or becoming a widow). In short, women married on or before that day are remitted, for all purposes connected with dower, to the old law (1). This saving clause, which continues to a large class of wives the old provision, and to conveyancers their old devices for evading it, will have the effect of prolonging the practice of inserting limitations to prevent dower, in purchase deeds, and in wills devising estates in fee; for where the purchaser or the devisee has a wife living, to whom he was married on or before the given day, limitations to prevent dower are still requisite. It is said, indeed, that, as to a man who was married on or before the 1st day of January, 1834, either the general limitations above mentioned (i. e. the usual limitations to bar dower) must be adopted, or if the limitations are confined so as to guard against the present wife's dower only, (i. e. by restricting the estate of the trustee to the joint lives of the husband and his present wife), there should also be inserted a declaration that no future wife should be dowable (m). But the declaration, it is conceived, if proper to be inserted at all (n), should be inserted, whether the limitations be confined to the existing coverture or not; for, neither the usual limitations to bar dower, nor any other limitations under (1) In consequence of certain floating doubts, this view of the act was originally put forth with some hesitation. But those doubts are now dissipated. An eminent writer observes, "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 Jan. (m) 1 Sugd. Pow. 249. CHAPTER V. its effect, as regards the old expedients for preventing dower. CHAPTER V. As to the expediency of retaining the uses to prevent dower, the power of the which the husband would be owner of the immediate béneficial fee (s. 2), could exclude a future wife; unless, indeed, such limitations contained something amounting to a declaration against dower (s. 6), as, where the estate of the trustee is limited "to the intent, that the present, or any future wife, may not be entitled to dower." Indeed, to prevent the necessity of inquiring, for purposes of title, into the fact and time of marriage, and particularly it will be advisable, in most cases, to insert the uses appointment. commonly introduced before the passing of the act, until time may be presumed to have worn out the class of wives within the saving. Even then, it may be proper to retain the power, which enables the owner to convey by appointment simply. The power had also, till lately, the more questionable merit of enabling him, on a sale or mortgage, to confer a title paramount to the claims of his judgment creditors (o), notwithstanding that the purchaser or mortgagee had actual notice of the judgment, and whether the judgment was obtained in invitum or not (p); but a recent act (q) has extended the remedies of the judgment creditor to lands over which the debtor shall, at the time of entering up the judgment, or at any time afterwards, have any disposing power, which he might, without the assent of (0) Doe d. Wigan v. Jones, 10 Barn. & C. 459; 5 Man. & R. 563; Tunstall v. Trappes, 3 Sim. 300. (p) Eaton v. Sanxter, 6 Sim. 517; Skeeles v. Shearly, 8 Sim. 153; but see 1 Ad. & Ell. 293. It may be doubted, whether, if the vendor had appointed to a mortgagee in fee, or had, before the execution of the conveyance creating the power, become equitable owner under a contract, the purchaser any other person, exercise would, by virtue of an appointment, have taken the equitable fee, discharged from a judgment, first attaching on that fee in its separate state. (8 Sim. 1). The discharge in equity seemed to depend on the identity of the legal and equitable ownership, and on the effect of the appointment in passing the latter as involved in the former. 13. (g) 1 & 2 Vict. c. 110, ss. 11, for his own benefit. And though this enactment has been modified, in favour of purchasers, by a still later act (r), yet, such modification places the protection to be derived from an appointment upon an equality with that ordinarily afforded, on general principles of equity, by a prior legal estate acquired without notice (s). The propriety of the practice, which soon after the passing of the Dower Act became general, of inserting, as a matter of course, in conveyances to purchasers, a declaration against dower, (the forms of which, if collected, would exhibit the same idea, diversified by a whimsical variety of expression), has been questioned (t), on the ground that as an owner in fee can now alien and devise free from dower, or exclude it by a declaratory deed or will, dower can attach only in the absence of a contrary intention, manifested by inconsistent acts or express declaration; and that, 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. There is force in this reasoning; and, perhaps, the indiscriminate insertion of the declaration may be ascribed to a sort of instinct, which led professional men to shut out dower at any rate. It did not occur to them, that, to permit the widow's provision by law, in the event of intestacy, to take effect as to the intestate's real, as well as his personal estate, would be more in accordance with the principle of the act, and more agreeable to analogy. The fact, however, that lands are often devised to the heir, might be an objection to the omission of the declaration, were it not that, by a contemporaneous act (u), the heir takes as devisee. It is clear, at least, that no blame could CHAPTER V. As to the insertion, in pura declaration against dower. discriminate in chase deeds, of CHAPTER V. Dower of attach to any professional man for the omission of the declaration, unless he were expressly instructed to insert it. Where a vendor has a wife dowable, and the marriage on or before the was solemnised on or before the 1st of January, 1834, women married 1st Jan. 1834, how barrable. Unfounded doubts relating the new law; -whether a title to dower is and Recoveries Act; her dower must be extinguished by a deed acknowledged, or be excluded by the assignment of a prior term (x). But in regard to a wife taken after the 1st of January, 1834, her right to a provision out of the husband's land, is, by this act, reduced to a shadow; and the legislature, in abstaining from the total abolition of dower, may be thought to have displayed more seeming gallantry than real wisdom. The condition of married women under the new law, to dower under with reference to dower, has produced some controversy. How far the doubts entertained had any real foundation, will be seen from a brief statement of the two questions which have been most seriously agitated. 1. A doubt within the Fines was started, whether a woman married on or before the 1st of January, 1834, could extinguish her title to dower by a deed acknowledged according to the Fines and Recoveries Act, and, indeed, whether that act extends to dower in its inchoate state. There seems to be no ground for any such doubt, which, if it turn upon the supposed inadequacy of the word " estate," as extended by the first section of that act, to " any interest, charge, lien, or incumbrance, in, upon, or affecting lands, either at law or in equity," to include the wife's title to dower, is really idle, since the word INTEREST," ex vi termini in legal understanding," (and, à fortiori in the construction of an act of parliament of this description), "extendeth to estates, rights, and titles, that a man hath, of, in, to, or out of lands; for he is truly said to have an interest in them" (y); (x) Mole v. Smith, 1 Jac. & W. 665; 1 Jac. 490; vide ante, 297. (y) Co. Litt. 345, 346. and if it turn upon any supposed repugnancy between the Fines and Recoveries' Act and the Dower Act, is, if possible, still less deserving of serious refutation. The former act merely abolishes the old mode of assurance by married women, and substitutes generally a new mode; the latter act dispenses, to a certain extent, with the necessity of any conveyance by the wife. To every case, in which a conveyance by the wife is or shall be requisite, the substituted assurance applies. This doubt derived more countenance than it seemed to deserve, from the remark of a writer of high authority, that "the 3 & 4 Will. 4, c. 74, s. 77, might be held to extend to dower so as to enable a married woman to destroy it, but did not, in expression, accurately embrace it (≈)." But the doubt has ceased to be seriously entertained (a); and, even the criticism seems to vanish before the authority of Coke. 2. It has been contended, that the dower of a woman married on or before the 1st of January, 1834, out of lands purchased by the husband after that day, may be excluded by a declaration (and, as a consequence, by alienation, &c.) under the Dower Act. This is the converse of the position already noticed, that the dower of a woman married after the 1st of January, 1834, may be excluded by the common limitations to prevent dower (b). In order to support the opinion in question, the last section (c) must be expounded thus:-" this act shall not extend to any title (z) 1 Sugd. Vend. 9th ed. 344. But see 2 Sugd. V. & P. 10th ed. 308. (a) 2 Sugd. V. & P. 10th ed. 308. (b) Ante, 296. (c) "And be it further enacted, that this act shall not extend to the dower of any widow who shall have been or shall be mar- |