1 Smith v. Smith, 5 Ves. 189.

nership, which is a species of joint tenancy, except, in the latter case, the partnership estate have been conveyed to one of the partners under an agreement that it was to be his separate property, and that he was to be a debtor to the partnership for the purchasemoney1. He must be seised of the legal inheritance; and therefore copyholds are not subject to dower, for the freehold is in the lord, and the copyholder, in estimation of law, is but tenant at will; nor 2 Att.-Gen. v. is a trust estate 2. The seisin must also be of the entire inheritance, Scott, Ca. temp. Talb. 138. at some time during the marriage; and therefore she is not dowable 'Co. Litt. 32. a. of a reversion or remainder in fee, expectant on an estate for life3. For the same reason, if there be a conveyance to A. for life, remainder to B. and his heirs, during the life of A., with remainder to the heirs male of the body of A., his widow will not be entitled to dower; because the estate limited to B. being a vested remainder, which might possibly have taken effect by A.'s forfeiture of his life estate 4, there is a portion of the legal estate outstanding in B., and consequently, A. is not seised of the entire inheritance; but if the intermediate estate in B. had been only for a term of years, it would not have prevented the wife's right to dower, because the possession of the termor is the possession of the owner of the freehold 5. As the intervention of an estate for life will exclude the wife's title to dower, so also, of course, will a vested estate tail, but not an estate tail contingent, which never vested, and which consequently, may be considered as if it had not existed. When there are interposed contingent estates tail which are destroyed by the descent of the inheritance upon the tenant for life, if the descent be immediate from the person vising the pre-existing particular interests, the estate for life will not merge, and consequently, the wife will not be entitled to dower 6; if it be not immediate the life estate will merge and she Holmes, 1 Lev. will become dowable 7.

4 Duncombe v. Duncombe, 3 Lev. 137.

Bates v. Bates, 1 Ld. Kaym.

326.

6 Plunket v.

11.

Kent v. Harpool, 1 Vent. 306.

s1 Roll. Ab. 677, pl. 7.

de

If the husband and wife be tenants in special tail with remainder to the right heirs of the husband, and the wife die without issue, and then her husband marries again and dies, his second wife will be entitled to dower; because her husband,

on the death

of his first wife without leaving issue, became tenant in tail after possibility of issue extinct, which for most purposes is regarded in law only as an estate for life, which estate meeting with the remainder in fee in him merged in it, and so he became seised of the freehold and inheritance during the marriages.

If husband, tenant for years, make a feoffment in fec, the

widow of the feoffee will be entitled to dower against the feoffor and his heirs, but not, it is apprehended, against the lawful owners after they have determined the estate of the feoffee1. The widow of the feoffee will be entitled to dower against his heir, so long as such defeasible estate is allowed to continue 2.

* Seymour's
Ca., 10 Rep.

95 b.

As the widow holds her dower free from all charges and incumbrances made by her husband subsequent to the marriage, because her title, upon its becoming consummate by his seisin and death, has relation back to the date of her marriage; so, on the other hand, she takes subject to all charges and incumbrances then existing. If, therefore, at the time of the marriage, the estate had been mortgaged in fee, and so continued in mortgage during the coverture, as in this case the husband was not seised & Saville. of the freehold and inheritance at any time during the continuance 326 of the marriage, the widow is not dowable. If the mortgage was only for a term, or if the charge was merely in the nature of a chattel interest, as a devise to executors for payment of debts, and

Hitchens,

Vern. 403.

after payment to the testator's son in tail3, or a statute merchant, Hitchens v.
staple, or elegit, then, on the principle that the possession of the
termor is the possession of the owner of the freehold, and that Co. Litt. 42. a
the seisin of the freehold and inheritance is not disturbed by a
mere out standing chattel interest, the wife is entitled to dower,
subject to the term or other chattel interest. As to the former case,
it is immaterial at law, whether the mortgage has been satisfied or
not; if the term be subsisting, she cannot get her dower before its
expiration or other determination; in other words, at law she could
only recover her dower with a cessat executio during the term;
but a court of equity, if the mortgage-debt has been satisfied,
will, on her application, restrain the heir or devisee from setting
up this outstanding term, and thus enable her to recover her
dower immediately. If the mortgage be a subsisting charge at
the husband's death, then, although the widow will be entitled
to immediate endowment of the reversion in a third, yet it must
be on the terms of keeping down a third part of the interest.

In regard to the mortgage, the widow is liable to be called upon for payment of the whole debt, or to be foreclosed. If she discharge the demand, she will be at liberty to hold the estate until she has been reimbursed what she paid beyond her proportion as tenant for life of a third part of the lands. If she be afterwards redeemed, she will be charged in the account with one-third of the

interest, and will be allowed one-third of the rents and profits, and will hold the share which will be assigned to her, subject to the payment of one-third of the interest during her life. This is, of course, on the supposition that the husband's personal estate is not liable, or not adequate, to exonerate his real estate from the mortgage.

It is not necessary that the husband's seisin should continue till his death, it is sufficient if he be beneficially seised of a lawful estate of freehold and inheritance at any period during the marriage, and if for an instant only. Thus, where a father was tenant for life, remainder to his son in tail, remainder to the right heirs of the father; they were attainted of felony and executed together, the son had no issue, and the father left a widow. Evidence was given that the father moved after the son, the father's widow claimed dower, and it was adjudged to her 1. But if the Randall, Noy, seisin for an instant be merely transitory, as if the same act by which the husband acquires the fee takes it out of him, so that he is, as in the case of a feoffee to uses, merely the conduit-pipe for passing it, and takes no interest, dower does not attach.

' Broughton v.

64; Cro. Eliz. 503.

9 Chaplin v. Chaplin, 3

P. W. 230.

Co. Litt. 41. a.

If, the husband being seised of the freehold and inheritance at any time during the marriage, his estate should happen to expire during his life or afterwards; as if, being tenant in tail, he should die without issue, and so the estate tail determine 2; or, being seised in fee, should die without heirs, and so the estate 1 Eden, 193; should escheat 3; yet, nevertheless, the wife shall be entitled to her dower. Where the husband's estate is defeated by title paramount, as by entry for condition broken,-by reason of a defective title in the grantor,-or by shifting use,-the right to dower is also defeated; but where the husband's estate is defeated by executory devise, it has been settled4, rather anomalously it has been thought, that the widow shall nevertheless be entitled to her dower.

• Moody v. King, 2 Bing. 447 .

Assignment of dower by metes and bounds.]-A widow is not entitled to enter upon her third part of the estate until it has been Co. Litt. 34. a. duly assigned to her by the heir, or other competent authority 5. The difficulties and hazards, to which the widow is exposed in proceeding at law for the recovery of her dower and its incidents, are so numerous, that widows have preferred resorting to a court of equity for assignment of dower, where there are fewer embarrassments from the forms of proceeding than at law, and where all

obstacles that improperly tend to delay or defeat their rights are removed. The widow's title to dower is a legal title, and a court of equity interposes merely to remove obstacles in the widow's way, at law, to obtain an assignment. It is not necessary in a bill for dower to charge any impediment, though it is usual for the widow to insert a general charge in her bill of outstanding terms, &c., which the heir, or tenant, intends to set up to defeat her proceedings at law; and this practice seems prudent. As the widow's title is purely legal, when any question of dower has arisen in a court of equity, and doubts have been entertained of the validity of her title, it is the practice to put her to bring her writ of dower,the court in the mean time retaining the bill, but assisting her in trying her right by giving her a discovery of deeds1; and when 12 Bro. C. C. it is determined in her favour, by ascertaining metes and bounds 2, and giving her possession according to her right: for which purpose a commission usually issues to set out and assign the dower, though the decree sometimes directs it to be done by the master. Before the recent act of 3 & 4 Will. 4, c. 27, the Court, in assigning dower, was in the habit of giving the widow an account of mesne profits from the death of her husband, and did not confine the account to the last six years preceding the exhibition of the bill 3. By this statute it is enacted, "That "after the 31st December 1833, no arrears of dower, nor chardson, 9 "any damages on account of such arrears, shall be recovered or obtained by any action or suit, for a longer period than six "years next before the commencement of such action or suit4."

Means of preventing dower from attaching, and of defeating it when it has attached.]-Dower being an incumbrance on an estate, inconvenient and expensive on sale or mortgage, and although at common law designed as a provision for the wife after the death of her husband, yet, in the case of considerable estates, yielding a much larger income than was necessary, various expedients have been adopted, for the purpose of preventing dower from attaching at all. Of these expedients, the first in point of antiquity is the provision by way of jointure. This was a statutory bar of dower. Upon this statute, courts of equity, applying their peculiar principles, have engrafted a very extensive head of doctrine under the titles of equitable jointure, and equitable satisfaction of dower; by means of which, this mode of barring or preventing the wife's title to dower has been extended far beyond

631.

23 Atk. 130.

Oliver v. Ri

Ves. 222.

Sect. 41.

3 & 4 W. 4, c. 105, s. 2.

the original purview of the act; these courts having, in effect, held that any provision for the wife, however little, in conformity with the requisitions of the statute, if made before marriage, should be an absolute bar of dower, and if made after marriage, should put the widow to her election between the provision so made and her title to dower. When this bar was applicable, it extended to all lands of which the husband was seised at the time of marriage, or might acquire at any subsequent period during its continuance. Another means of preventing dower from attaching, but applicable only to lands which the husband acquired by purchase on a sale to him, was founded on the principle, that a wife was dowable only of lands of which the husband was solely seised of the whole legal and equitable inheritance at some time during the coverture, and consisted in taking the conveyance to him in such a form as to vest the whole, or some portion, of the legal estate in a trustee: various forms of limitation were successively resorted to for this purpose; but that which is now and for a considerable period past has been employed for this purpose, is commonly known as the limitations to uses to bar dower.' In respect, however, to cases falling within the operation of the act for the amendment of the law of dower, that is to say, where the marriage has taken place since the 1st of January, 1834, as the wife is dowable out of her husband's estates of inheritance, "whether wholly equitable, or partly legal and partly equitable1," these limitations are inoperative for the purpose of excluding the wife's title to dower; but the same object may be attained by a declaration in the deed of conveyance, or by the various other means provided by the act. When the wife's title to dower had attached, and it had become necessary for the purpose of sale, or otherwise, to extinguish her title, it was effected by the wife joining her husband in a fine or recovery of the lands subject to her dower; and since the abolition of these modes of assurance, it is done by a deed executed by the wife, and acknowledged and otherwise perfected in the mode prescribed by the statute 3 & 4 W. 4, c. 74. And, finally, although her title has attached, it may be destroyed by her adultery: for, by the 13 Ed. 4, c. 34, it is enacted, that "if a wife willingly leave her husband, and go away and continue with her avowterer, she shall be barred "for ever of action to demand her dower, that she ought to