a third of the remaining two-thirds. For it is a maxim of law, that dos de dote peti non debet, this rule is to be found in Glanville; the reason is, that when the Lib. 6. c. 17. heir endows the widow of the ancestor, the assign ment defeats the seisin which the heir acquired by the descent of the lands to him; so that the widow is in infra, c. 4. of the estate of her husband; and the heir is consi dered as never having been seised of that part. 21. In the same manner, if a woman on whom Bro. Ab. lands descend, endows her mother, afterwards marries, Curtesy, 10. has issue, and dies in the life-time of her mother; her husband will not be entitled to an estate by the curtesy in those lands, whereof the mother was endowed; because the daughter's seisin was defeated by the endowment. 22. The rule of dos de dote is only applied where dower is actually assigned; if no dower be assigned, it does not take place. 2 Vern. 403. 23. Lands subject to a title to dower, were devised Hilchins v. to a person in fee; he died, leaving a widow, who Hilchins, sued for dower, and recovered a third part of the whole; without any regard to the title of dower in the widow of the testator; who had not made any claim to it. The Court held, that as the testator's widow had not recovered dower, it was to be laid out of the case: so that the dower of the devisee's widow, was not to be looked upon as dos de dote. 1. . 31 b. 24. It appears from Magna Charta, that a widow A Castle. was not dowable of a castle or fortress; nor even of 2 Inst. 16. a capital messuage, where it was caput comitatus, or baronia. This doctrine must however be understood to be applicable to baronies by tenure only; therefore the circumstance of a person's being created a baron by letters patent, by a title taken from a prin- Gerrard v. cipal mansion-house in his possession, will not make Gerrard, Tit. 26. Uses and Tit. 11 & 12. Mortgages. Where Dower and Lit. § 393.. ante, § 18, 19. that house caput baroniæ; so as to exclude the widow from claiming dower out of it.. 25. A widow was never allowed dower of a use, nor is she now entitled to dower out of a trust estate; of which the reasons will be given hereafter. 26. A widow is not entitled to dower out of an estate conveyed to her husband by way of mortgage; of which an account will be given in that title. 27. It has been stated, that in the case of an estate tail, the dower of the wife, and the curtesy of the husband, continue after the estate is determined. But there are several other cases where dower and curtesy cease upon the determination of the estate. 1. Where the fee is evicted by a title paramount, both dower and curtesy necessarily cease. 2. Where the seisin of the husband is wrongful, and the heir is remitted, by which the wrongful estate is determined; Tit. 13. c. 2. the right to dower ceases. 3. Where the donor enters for a breach of a condition, the right to dower and cur10 Rep. 97 b. tesy are defeated. 4. Where a person has a qualified or base fee, the right to dower and curtesy ceases when the estate is determined. 5. Where an estate in fee is made determinable upon some particular event, if that event happens, dower and curtesy cease with the estate. Buckworth v. Thirkell, Tit. 38. c. 17. Nature of this Estate. 28. The interest which widows acquired by way of dower, was seldom greater than for their own lives; unless it was otherwise stipulated at the time of the marriage. And in England dowèr does not appear to have ever consisted of more than an estate for life. 29. Before the abolition of military tenures, the dowress was attendant on the heir, or whoever else was entitled to the reversion, for the third part of the services; and still she holds of the heir by fealty. 357. The assignment of dower by the heir being a species Gilb. Uses, of subinfeudation, not prohibited by the statute quia emptores; because the heir does not depart with the fee. 30. At common law a dowress could not devise The Dowress corn which she had sown, nor did it go to her personal Emblements. entitled to representatives; but became the property of the reversioner. Because the widow being entitled to an immediate assignment of dower, after the death of her husband, if the lands happened to be sown at that time, she had the benefit of it, which made her case different from that of other tenants for life, who are seldom put into possession of lands that are sown. It was however provided by the statute of Merton 20 Henry III. c. 2. that a dowress might dispose, 2 Inst. 80. by will, of the growing corn; otherwise that it should go to her executors. tion. 31. Tenants in dower were under the same restraints Restrained respecting alienation as other tenants for life. But from Alienawhere a dowress aliened by feoffment, and the feoffee 2 Inst. 309. died seised, whereby the entry of the person in reversion was taken away, he could have no writ of entry ad communem legem, until after the decease of the tenant in dower; and then the warranty, which at that time was usually inserted in all deeds, barred the reversioner, if he was heir to the dowress; to remedy this, the statute of Gloucester 6 Edward I. c. 7. provided, that upon the alienation in fee, or for life, of a tenant in dower, she shall forfeit her estate; and the heir shall have a writ of entry in casu proviso, in the lifetime of the dowress. 32. By the statutes 11 Henry VII. c. 20. and 32 Tit.36. c. 10. Henry VIII. c. 36. it is declared that no feoffiment, fine, recovery or warranty, by tenant in dower, shall create a discontinuance of the inheritance, or take VOL. I. And from away the entry of the heir, or person in reversion: but that all such acts shall operate as a forfeiture of her estate. 33. Tenants in 1 Inst.57 a. any kind of waste. dower are not entitled to commit kind of waste. It is somewhat doubtful whether they are within the statute 6 Ann. c. 31. respecting accidental fire. 34. It was lately held by the Court of Common Pleas, that if land assigned for dower contain an open mine of coal or lead, the dowress may work it for her own benefit. 35. The widow holds her dower discharged from all incumbrances created by her husband, after the marriage, because upon the husband's death, the title of the wife being consummate, has relation back to the time of the marriage; and to the seisin which her husband then had; both of which precede such incumbrances. 36. Dower is even protected from distress for a debt contracted by the husband to the crown, during the marriage. TITLE VI. DOWER. CHAP. IV. Assignment of Dower, and modes of recovering it. 1. Necessity of an Assignment. 3. Who may assign Dower. 7. How it is to be assigned. 20. Remedies against an improper Assignment. 24. Effect of an Assignment of Dower. 27. Actions for recovering Dower. SECTION 1: UPON the death of the husband, the right to dower, Necessity of which the wife acquired by her marriage, be- ment. an comes consummate: but unless the precise portion of land which she is to have is particularly specified, as used to be the case in dower ad ostium ecclesiæ, she cannot enter, till dower is assigned to her. For she might, in that case, choose whatever part of the lands she pleased; which would be injurious to the heir. The widow has therefore no estate in the lands Gilb. Ten. 26. of her husband till assignment, for the law casts the freehold on the heir immediately upon the death of the ancestor: 2 Inst. 16. 2. A widow could not formerly obtain an assign- 2 Comm.135. ment of her dower without paying a fine to the lord; hor could she marry a second husband without his licence. It was even usual for lords to force widows marry, merely for the purpose of obtaining a fine. It was therefore provided by the charter of Henry I. and also by Magna Charta, that widows should not |