limiting an estate in jointure, yet these are only mentioned as examples; and do not exclude any other estate consistent with the intention of the act. 12. In the Duchess of Somerset's case, 1 Mary, it Dyer, 97 a. was resolved by all the judges that an estate limited to a man and his wife, and to the heirs male of their two bodies begotten, was a good jointure within the statute, though not one of the estates mentioned in it. 13. In Vernon's case it was held that an estate 4 Rep. 2 a. limited to the husband for life, remainder to the wife for life, was a good jointure; though it was not one of the estates mentioned in the statute; because it was equally beneficial. 14. It is said in Brooke's Abridgement that an Tit. Dower, estate, limited to a husband and wife and their heirs, 69. is not a jointure within the statute, because it is not one of the estates mentioned in it. But Dyer con- 248 a. tradicts this position, and proves that it would be a 4 Rep. 3 b. good jointure, the words of the act being, " for term of life or otherwise in jointure," which word otherwise extended to all other estates conveyed to the wife, which were as beneficial, or more, as the estates mentioned. limited to the Wife 15. The third circumstance is, that the estate must Must be be limited to the wife herself, and not to any other person in trust for her. So that if an estate be made to others in fee simple, or for her life in trust, so as the estate remain in them, albeit it be for her benefit, and by her assent, yet it is no bar of dower. Equitable jointures are however now allowed, of which an account will be given hereafter. herself. 1 Inst. 36 b. tion of her 16. The fourth circumstance is, that it be made in In Satisfacsatisfaction of the wife's whole dower, and not of whole part of it only; for land conveyed to a woman in Dower. 1 Inst. 36 b. part of her jointure, or in satisfaction of part of her dower, is no bar, on account of the uncertainty. And be so expressed or averred. 9 Mod. 152. Tinney v. 17. The fifth circumstance is, that the estate limited to the wife be expressed, or averred to be, in satisfaction of her whole dower. 18. Since the statute of frauds it appears somewhat doubtful whether an averment can be admitted that provision made for a wife, previous to marriage, was intended as a jointure, and in bar of dower. 19. On a bill brought for dower, the defendant; the heir at law, insisted that the husband in his lifetime gave a bond in the penalty of 1,000 l. in trust to secure to his wife 500 l. in case she survived: that it was intended at the time in lieu of dower; that she acknowledged it to be so; and offered to read evidence of her acknowledgement. Lord Hardwicke was of opinion that parcl evidence could not be allowed in this case, being within the Tit. 32.c. 19. statute of frauds; and that a general provision for a wife was not a bar of dower, unless expressed to be so. That in the case of Vizard v. Longdale, 5 Geo. I. Sir Joseph Jekyll held the words in a bond, to secure a sum of money for a woman's livelihood and maintenance, was no bar of dower. But that Lord Chancellor King was of opinion it was a bar of dower, being within the equity of the statute of Henry VIII. of jointures, and therefore reversed the decree. Walker v. 1 Ves. 54. infra, $ 25. be 20. It is however observable, that there is nothing in the statute of frauds excluding averments, and it is generally understood, that whatever averments might have been made, before that statute, may made now. In Vernon's case, and an anonymous case, Owen, 33, it was averred that the estate limited to the wife was for her jointure, and in bar of dower; and the averment was allowed. before 21. The sixth circumstance is, that it be made And made before marriage. For it is enacted by the ninth sec- Marriage. tion of the statute, that if any wife have any manors 1 Inst. 36. a. 4 Rep. 3 a. &c. assured to her after marriage, for term of life or otherwise, in jointure; except the same be made by act of parliament; the wife shall at her liberty, after the death of her husband, refuse the jointure, and demand her dower. Widow. 22. A jointure attended with all the circumstances Jointures above stated is binding on the widow, and is a comwhich require the Acceptplete bar to her claim of dower; or rather prevents ance of the her title to dower from ever arising. But there are other modes of limiting an estate to a wife, which Lord Coke says are good jointures within the statute, provided the wife accepts of them, after the death of her husband. She is however at liberty to reject them, and to claim her dower. 23. Thus an estate settled on the wife, after marriage, may, by the express words of the statute, be rejected by the widow after her husband's death; in which case she may claim her dower. But if she once accepts of such jointure, she is thereby bound. 24. An estate for life, limited to a woman for her jointure, upon condition to perform her husband's will, or which is determinable during the life of the wife, is a jointure within the statute, if the wife accepts of it, after the death of her husband. 25. In a writ of dower the tenant pleaded that the Vernon's husband of the demandant was also seised of lands in Case, 4 Rep. 1. the same county, which he had conveyed to the use Dyer 317 a. of himself for life, remainder to his wife for life; and averred that the estate for life so limited to the demandant was for her jointure, and in full satisfaction of her dower; and that after the death of her husband, she had entered into the lands so limited to her for Cases where the Widow takes the Estate and Dower. 4 Rep. 2 a. her jointure, and agreed to it. The demandant replied and confessed the conveyance by which she took an estate for life; but said that the estate was upon condition that she should perform her husband's will; and demanded judgement if the tenant should be admitted to aver that this estate so limited to the wife, upon the said condition, was for the jointure of the wife, and in satisfaction of her dower; upon which the tenant demurred in law. It was resolved, that although the estate limited to the wife was upon condition; and although dower, in lieu of which the jointure was given, was an absolute estate for life; yet in as much as an estate for life upon condition was an estate for life, it was within the words and intent of the act, if the wife, after the death of the husband, accepted it: therefore she was barred of her dower. It was also said, that an estate limited to a woman during her widowhood, for her jointure, was good within the statute, if she accepted it. 26. It appears from the preceding cases that there are two sorts of jointures within the statute. One which prevents the title to dower from arising; another which, when accepted, but not before, becomes a bar to dower. When an estate does not fall within either of those descriptions, the widow becomes entitled to it, and to dower also. Thus in Vernon's case it was said, that if the estate there limited to the wife was not within the statute, then it was no bar 1 Inst. 36 b. of dower, but the demandant should have both. And Lord Coke says, where the estate limited to the wife does not take effect immediately upon the death of the husband; in which case it is not within the statute; the widow shall take such estate, and dower also. Equitable Jointures. 27. It has been stated, that by the statute 27 Hen. VIII. the jointure must be limited to the wife herself, and not to any other person in trust for her. It is however now settled that a trust estate, being equally certain and beneficial as a legal one, or even an agreement to settle an annuity, as a jointure, in bar of dower, is good as an equitable jointure. Jordan v. Savage, infra. 28. Thus in a modern case it was determined by Bucks v. the House of Lords, that a covenant from the intended Drury, infra. husband that his heirs, executors, or adininistrators would pay an annuity to his intended wife, for her life, in case she survived him, in full for her jointure, and in bar of her dower, without expressing that it 9 Mod. 219. should be charged upon lands, was a good equitable jointure, within the statute. Lord Hardwicke an- 4 Bro. R.506. swered the objection of its being in the husband's n. power to have defeated this agreement, and sold or given away his whole estate, by Lord Letchmere's Ca. Temp. and other cases, where the agreement rested, as here, Talbot, $0. upon the husband's covenant. And further, by observing that such an alienation would have been an evic- infra, § 48. tion of the fund out of which the jointure was to arise. and consequently let the wife into dower. To another objection, that the husband had not bound himself to do any act, but only that his heirs, executors, and administrators should pay, &c. he answered, that the wife might, the day after the marriage, have brought a bill, by her next friend, and compelled the husband himself to settle the annuity. 29. By indenture made previous to a marriage, the. Williams intended husband and wife assigned leasehold estates 3 Ves. Jun. for VOL. I. ૨ |