Book VI.

OF DOWER.[157]

CHAP. I.

The term Dower is used in two senses. Dower,[158] in the sense in which it is commonly used, means that which any free man at the time of his being affianced,[159] gives to his Bride at the Church Door.[160] For every Man is bound as well by the Ecclesiastical Law, as by the secular, to endow his Bride, at the time of his being affianced to her. When a man endows his Bride, he either names the Dower, or not. In the latter case, the third part of all the Husband’s freehold Land is understood to be the Wife’s Dower; and the third part of all such freehold Lands as her Husband held, at the time of affiancing,[161] and of which he was seised in his Demesne, is termed a Woman’s reasonable Dower. If, however, the Man name the Dower, and mention more than a third part, such designation shall not avail, as far as it applies to the quantity. It shall be reduced by admeasurement to the third part;[162] because a Man may endow a Woman of less, but cannot of more, than a third part of his Land.[163]

CHAP. II.

Should it happen, as it sometimes does, that a man endows a Woman, having but a small freehold at the time of his being affianced, he may afterwards enlarge her Dower to the third part or less of the Lands, he may have[164] purchased.

But if upon the Assignment of Dower, no mention was made concerning purchases, even admitting that at the time of affiance he possessed but a small Estate, and that he afterwards much increased it, the Wife cannot claim as Dower more than a third part of such Land as her Husband held, at the time of being affianced, and when he endowed her. The same Rule prevails if a Man, not being possessed of any Land, should endow his Wife with his Chattels,[165] and other things, or even with Money. Should he afterwards make considerable purchases in Land and Tenements, the Wife cannot claim any part of such property so acquired by purchase; it being, with respect to the quantity or quality of the Dower assigned to any Woman, a general principle, that if she is satisfied to the extent of her endowment at the door of the Church, she can never afterwards claim as Dower anything beyond it.[166]

CHAP. III.

It should be understood, that a Woman[167] cannot, during the life of her Husband, make any disposition of her Dower.[168] For since the Wife herself is in a legal sense under the absolute power of her Husband, it is not singular, if the Dower, as well as the Woman herself and all other things belonging to her, should be considered to be fully at the disposal of the Husband. But any one, having a Wife, may either give or sell her Dower, or, by any other mode he pleases, may alienate it in his lifetime; so that the Wife shall be bound to conform to his will in this as in all other respects which are not contrary to the Law of God. And so far is the Woman bound to obey her Husband, that if her Husband chuses to sell her Dower, and she refuses her consent, and the Dower be afterwards sold and bought under these circumstances, the Wife cannot[169] after the death of her Husband claim her Dower as against the Purchaser, if she confess in Court or is convicted upon the fact that, although she opposed her Husband, the Dower was sold by him.

CHAP. IV.

Upon the death of the Husband of a Woman, her Dower, if it has been named, will either be vacant or not.

In the former case, the woman may, with the consent of the Heir, enter upon her Dower,[170] and retain the possession of it. If, however, the Dower be not vacant, either the whole will be so circumstanced, or some part will be vacant, and some not. If a certain part be vacant, and a certain part not, she may pursue the course we have described, and enter into the part which is vacant; and for the residue, she shall have a Writ of Right, directed to her Warrantor[171] in order to compel him to do complete Justice concerning the Land, which she claims as appertaining to her reasonable Dower, which Writ shall be as follows:——

CHAP. V.

“The King to M. Health.[172] I command you that, without delay, you hold full right to A. who was the Wife of E. of one Hyde of Land, in such a Vill, which she claims to belong to her reasonable Dower, which she holds of you in the same Vill by the free service of ten shillings, by the year, for every service, of which N. has deforced her: and unless you do so, the Sheriff shall,[173] least she should anymore complain, for want of Justice. Witness &c.”

CHAP. VI.

The Plea shall be discussed in the Court of the Warrantor by virtue of this Writ, until it be proved that such Court has failed in doing Justice, concerning the nature of which, we shall speak in another place.[174] Upon proof of this, the Suit shall be removed into the County Court, through the medium of which, the Suit may, at the pleasure of the King or his Chief Justiciary, be lawfully transferred to the King’s Court by the following Writ:[175]——

CHAP. VII.

“The King to the Sheriff, Health. Put before me or my Justices, on such a day, the suit which is in your County Court, between A. and N. concerning one Hyde of Land in such a Vill, which the said A. claims against the aforesaid N. as her reasonable Dower. And Summon, by good Summoners, the aforesaid N. who holds that Land, that he be then there with his Plea. And have there,” &c.

CHAP. VIII.

Pleas of this description, as, indeed, some others, may be transferred from the County Court to the supreme Court of the King for a variety of Causes: as, on account of any doubt which may arise in the County Court concerning the plea itself, and which that court is unable to decide; (and when any suit is thus transferred to the Court, then both parties, as well the Tenant as the Demandant, shall be summoned.) But, when it has been removed upon the Petition of one of the parties, it will then suffice, if that party be summoned who did not require the removal: but, if the suit should be transferred to Court by the consent and prayer of both parties, being present in Court together, then, neither party ought to be summoned, because the day appointed in Court is known to both of them. Upon the day appointed in Court, either both parties will be absent, or only one will be so, or both will appear. We have already sufficiently treated concerning the absence of both, or of one only of the parties. If both be present in Court, the Woman shall set forth her claim against her Adversary in the following words. “I demand such Land, as appertaining to such Land, which was named to me in Dower, and of which my Husband endowed me at the door of the Church, the day he espoused me, as that of which he was invested and seised at the time when he endowed me.”[176]

Various are the Answers which the Adverse party usually gives to a claim of this kind; in substance, however, he will either deny that she was so endowed, or concede it.

But, whatever he may allege, the Suit ought not to proceed, without the Heir of the Woman’s Husband. He shall, therefore, be summoned to appear in Court to hear the Suit, by the following Writ:——

CHAP. IX.

“The King to the Sheriff, Health. Summon, by good Summoners, N. the Son and Heir of E. that he be before me, or my Justices, on such a day, to warrant to A. who was the Wife of the said E. his Father, one Hyde of Land in such a Vill, which she claims to belong to her reasonable Dower of the Gift of the said E. her Husband, against N. and of which there is a Suit between them in my Court, if he will warrant that Land; or to shew to her why he ought not to do so. And have there &c. Witness &c.”

CHAP. X.

Should the Heir, after having been summoned, neither appear, nor essoin himself, on the first, second, nor third day; or if, after having cast the usual Essoins, he should on the fourth day, neither appear nor send his Attorney, it may be a question, by what means he ought or can be distrained, consistently with the Law and Custom of the Realm. In the opinion of some, his appearance in Court, shall be compelled, by distraining his Fee.[177]

And that, therefore, by the direction of the Court so much of his Fee[178] shall be taken into the King’s hands as may be necessary to distrain him to appear in Court to shew, whether he ought to warrant the Land in question or not. Whilst others[179] think, that his appearance in Court for such purpose may be effected, by attaching him by Pledges.

CHAP. XI.

When, at last, the Heir of the Husband of the Woman, the complainant, appear in Court, either he will affirm the fact, and concede that the Land in question appertains to the Dower of the Woman, and that she was endowed of it, and that his Ancestor at the time he endowed her was seised of it as an appurtenant to the Land which he named in chief, as her Dower, or, he will deny it. If the Heir admit this in Court, he shall then be bound to recover the Land against the Tenant, if he be disposed to dispute the matter, and then deliver it to the woman; and thus the contest will be changed into one between the Tenant and the Heir.

If, however, the Heir be unwilling to contest the point, he shall be bound to give to the Woman a competent equivalent; because, the Woman herself shall not afterwards sustain any loss. But, if the Heir himself neither admit nor concede to the Woman that which she alleges against the Tenant, then, the suit may proceed between the Woman and the Heir. For a Woman cannot with Effect bring an Action against any one, without the Warrantor of her Dower.[180] If, therefore, the Heir should absolutely deny the Right of the Woman, alleging in Court, that she never was endowed by his Ancestor, the matter may be decided by the Duel, provided the Woman produce in Court those who heard and saw the Endowment, or any proper Witness who may have heard and seen the fact of her being endowed by the Ancestor of the Heir at the Church door, at the time of the Espousals, and be ready to prove such fact against him.

Should the Woman prevail against the Heir in the Duel, then the Heir shall be bound to deliver the Land in question to the Woman,[181] or to give her an adequate recompense.

CHAP. XII.

It should be observed, that when any one endow his Wife in these words, “I give to thee this Land, or Vill, by name, with all its appurtenances”—if, at that period, he held not any thing appurtenant to it in his Demesne, nor of which he was seised at the time of his Espousals, and he in his lifetime recover it, or by any other lawful means acquire it, the Wife, after the death of her Husband, may, by the Law of Dower, justly demand such appurtenant, together with the other property of which she was endowed.

CHAP. XIII.

It must also be understood, that if the Husband of any Woman, after having endowed her as his Wife, should sell her Dower to any one, his Heir shall be obliged to deliver the Dower to the Woman, if he possibly can; at the same time he shall be bound to render a reasonable equivalent to the Purchaser, on account of the Sale, or Gift of his Ancestor.[182] If, however, the Heir be unable so to do, he shall be bound to make to the woman a reasonable compensation.

CHAP. XIV.

When the Dower of a Woman happen to be so circumstanced, that she is prevented from obtaining any part of it, then, the suit shall from the beginning be carried on in the King’s Court, and the person in possession of the Dower shall be summoned, by the following Writ:——

CHAP. XV.

“The King to the Sheriff, Health.[183] Command N. that, justly and without delay, he cause A. who was the Wife of E., to have her reasonable Dower in such a Vill, which she claims to have of the Gift of the said E., her Husband, and of which she has no part, as she says; and of which she complains that he has unjustly deforced her; and, unless he does so, summon him, by good Summoners, that he be, on such a day, before us, or our Justices, to shew wherefore he has not done it; and have there, &c. Witness, &c.”

CHAP. XVI.

Whoever happens to be in possession of the Dower, whether the Heir or another person, the Heir ought always to be present to answer the Woman claiming her Dower. If, therefore, a stranger, and not the Heir, deforce the Woman of her Dower, he shall be summoned by this Writ; but the Heir shall be summoned by the former Writ.

CHAP. XVII.

The suit between the Heir and the Widow, may be infinitely varied. For the Woman will either claim her Dower, as named, or her reasonable Dower as not named. The Heir also may admit that her Dower was named, but that it differs from that she demands; or he may allege, that no Dower was specified.

If the contest between them be concerning Dower which was named, or concerning different nominations of it, then, the Plea may proceed in the manner we have above described. But if a reasonable Dower be demanded, no specific nomination having been made, the Law is perfectly clear, that the Heir is bound to assign to the Woman as her Dower, a third part of all the freehold Tenements that his Ancestor held in his Demesne, on the day of the Espousals, and this unreservedly, in every thing, as in Lands, and Tenements, and Ecclesiastical Advowsons,[184] so that if there should be but one Church in the whole Inheritance, and such happen to fall vacant in the life of the woman, and after the death of her Husband, the Heir shall not, without the Assent of the woman, present a Parson to such Church. From the generality of this Rule we must except the Capital Messuage, which cannot be given in Dower, nor can it be divided, but shall remain entire.[185] Nor shall a division be made of those things which other women, who have been previously endowed, still hold in Dower.[186] Besides, if there should be two or more Manors to be divided, the Chief Manor shall not be divided, but, together with the capital Messuage, shall remain entire to the Heir, so that the Widow shall be fully satisfied from the other Manor or Manors. It should also be remarked, that the Assignment of the Dower shall not be postponed, on account of the Infancy of the Heir. In addition, should any Land have been given by name to a Woman, in Dower, and should a Church have been founded in that Fee, the Woman, after the death of her Husband, shall have the free Presentation; so as to have it in her power, in case such Church should become vacant, to bestow it upon any proper Clerk.[187] But she cannot confer it upon a College,[188] because, by so doing, she would for ever destroy the Right of the Heir.

But if the Husband of the woman happen in his lifetime to bestow the Church upon the Clerk, the latter shall, during the whole of his life, retain such Church; although he were presented subsequently to the period when the woman was endowed of that Land. If, however, the Husband should, in the interval, bestow the Church upon any religious House, the Church ought, after the death of the Husband, to be delivered to his Widow, so that in the course of her life she may have a free Presentation.[189] But, after the death of the woman, and of the Clerk instituted Parson upon her Presentation, the Church shall revert to the religious House, and shall for ever after so remain. It may also be observed, that if the wife should, in the lifetime of her Husband, be separated from him on account of incontinence, the Woman shall not be heard upon a claim of Dower.[190] The same rule prevails, if she be separated from him on account of Relationship[191]—she shall be debarred from claiming her Dower. And yet her children may inherit, and, by the Law of the Realm, shall succeed to their Father by hereditary Right.[192] Observe also, that when the Son and Heir of any one marries, with the consent of his Father, and, by the Assignment of his Father, endow his Wife with a certain part of the Land of his Father,[193] it may be questioned whether the Wife can demand any more as dower?[194] If her Husband die previously to his Father, it may be doubted, whether she can retain the Land in question, as her Dower, and whether the Father of her Husband be bound to warrant such Land to her?[195] If a woman have more Land in Dower than she ought, that is, more than belongs to her, let the Sheriff be commanded to admeasure it, and for this purpose the following Writ shall issue——

CHAP. XVIII.

“The King to the Sheriff, Health.[196] N. complains to us, that A. his Mother, has more in Dower of his Inheritance, than she ought to have, and than belongs to her to have, to wit, her reasonable Dower. Therefore, I command you, that justly and without delay, you cause it to be admeasured; and that, justly and without delay, you cause the said N. to have what he ought of right to have of his inheritance; and, justly and without delay, cause the said A. to have what she ought to have, and what belongs to her to have, to wit, her reasonable Dower, least he should again complain for want of Justice. Witness, &c.”