ante, § 19. Estcourt v. Estcourt, Who may limit a Jointure. Bridge's Ashton's Who may take a Jointure. An Infant is barred by a Jointure. 30. In the case of Tinney v. Tinney, a sum of money secured by bond to the intended wife before the mar riage, was held to be a bar to dower. And in a case published by Mr. Cox, where the intended husband gave a bond to the mother of the intended wife, conditioned that he or his heirs would settle 500 l. a year in land on her, in satisfaction of dower; Sir T. Clarke, M. R., held it a good jointure. From which it appears that the courts of equity now consider any provision which a woman accepts before marriage, in satisfaction of dower, to be a good jointure. 31. It is not necessary that the estate limited as a jointure should proceed immediately from the husband. For if it comes through the medium of trustees, or of the demandant in a common recovery, it will be good. 32. A. bargained and sold lands to I. S. and I. N. to make them tenants to the præcipe, for the purpose of suffering a common recovery, which was duly had, to the use of A. and his wife, for her jointure. Resolved, that this was an assurance by A. himself, for the advancement of his wife. 33. If the estate proceeds from the father of the husband, it will be good. of 34. The father of the husband, in pursuance articles, enfeoffed trustees, before the marriage, to the use of the intended wife for life: the question was, whether this was a good jointure, it not being made by the husband, nor of his lands. Held a good jointure. 35. As a jointure is an estate limited to a woman in lieu and satisfaction of dower, it follows that all those who are capable of being endowed, may take a jointure. 36. It was formerly much doubted whether a jointure, settled on an infant before marriage, was a bar 3 Atk. 612. to dower. But it has been determined that such a 9 Mod. 218. jointure is good, and that the infant cannot waive it after her husband's death, and claim dower. of) v. Drury, 3 Bro. Parl. Ca. 492. 37. Sir T. Drury, previous to his marriage with Bucks (Earl Miss Tyrrell, who was then an infant, by indenture made between him of the first part, Miss T. of the second part, and two trustees of the third part, agreed that Miss T. in case the marriage took place, and she survived him, should have an annuity of 600 l. during her life, for her jointure, and in bar of dower; and Sir T. D. covenanted with the trustees that his heirs, executors, and administrators would pay the annuity. The deed was executed by Miss T. in the presence of her guardian, who was a subscribing witness to it, and the marriage was soon after solemnized; with the privity and consent of the guardian. Miss T. was only entitled to a portion of 2000 1. Sir T. Drury died seised of a considerable real estate. Lady Drury insisted, that as she was an infant at the time of executing the settlement, she was not bound to accept the provision thereby made for her; but was entitled to dower. The heirs of Sir T. D. filed a bill in Chancery against her, praying that she might be restrained from claiming dower. The cause was heard before Lord Henley, who decreed that Lady Drury was entitled to dower. On an appeal to the House of Lords the following question was put to the judges: "Whether a woman married under the age of 21 years, having before such marriage a jointure made to her, in bar of her dower, is thereby bound, and barred of dower within the statute 27 Henry VIII. c. 10." The judges were divided; three of them delivered their opinion in the negative, but the rest in the affir 506. n. mative. Lord Hardwicke and Lord Mansfield also delivered their opinions in the affirmative; whereupon the decree was reversed. 38. The principle upon which this case was determined is, that a jointure being a provisione viri, and not ex contractu, the consent of the intended wife is not a circumstance required by the statute, to render 4 Bro. Rep. a jointure valid. Lord Mansfield, in delivering his opinion in the House of Lords on this case, said that a jointure was not a contract for a provision, but a provision made by the husband, as defined by Lord Coke; so the consequences drawn from the infant's incapacity of contracting were ill founded. It is therefore now held that the intended wife need not be a party to the deed by which the jointure is limited. And in an opinion of the late Mr. Fearne's, he says, "I discover nothing in the statute 27 Henry VIII. of jointures, that requires the wife being a party to the deed which secures her jointure; and some of the cases said to be within that statute seem rather against such a conclusion." Jordan v Savage, ante. 2 Ab. Eq.101. Estcourt v. 1 Cox. R. 20. 39. It is however necessary, I conceive, that the intended wife, or, where she is under age, that her guardians, should have notice of the jointure limited to her; for otherwise she may be defrauded by the settlement of a jointure inadequate to her rank and 3 Atk. 612. fortune; in which case there can be no doubt but that she would be relieved in equity. Nature of this Estate. 40. We have seen that an estate in fee, in tail, or for life, may be limited to a woman for her jointure. In the case of a limitation in fee, I conceive a jointress would have full power to dispose of it as she pleased. But where an estate tail is limited to a woman for her jointure, she is prohibited by the sta tutes 11 Hen. VII. c. 20., and 32 Hen. VIII. c. 36., from alienating, or creating a discontinuance of it, vide Tit. 36. feoffment, fine, or recovery. c. 10. Basset v. Finch, 189. Cook v. 41. Where lands are limited to a woman for life, for her jointure, she is not allowed to commit waste; and will be restrained from it by the Court of Chan- Basset, cery, in the same manner as other tenants for life. 42. On a motion to stay a jointress, tenant in tail after possibility, &c. from committing waste; the Court held, that as she was a jointress within the sta- 221. tute 11 Hen. VII. she ought to be restrained, being part of the inheritance, which by the statute she is prevented from alienating; and therefore granted an injunction against wilful waste. Winford, 1 Ab. Eq. Carew, I Ab. 43. Where there is a covenant that a jointure shall Carew v. be of a certain yearly value, though the estate be not Eq. 221. limited without impeachment of waste, yet the Court of Chancery will not restrain the jointress from committing waste, so far to as make up the defect of the jointure. 44. Where the jointress and the issue claim under Carpenter v. the same settlement, they shall contribute proportion- 1 Vern. 440. Carpenter, ably in the discharge of any prior incumbrance on the estate. Forbes, 45. A jointress is not entitled to the crops sown Fisher v. at the time of her husband's death; because a join- 9 Vin. Ab. ture is not a continuance of the estate of the husband, 373. like dower. 46. It appears from a passage in Jenkins, that a Pa. 226. jointure is not liable to debts due to the crown. A Rentcharge is usually 47. The inconveniencies which attend a limitation of land, by way of jointure, are so numerous, that it has long been a general practice, to limit a rent- given as a charge to the intended wife for her life, as a jointure, to commence from the death of the husband; ૨૩ Jointure. Effect of the Gervoye's Moo. 717. Maunsfield's Case, 1 Inst. 33 a. n. 8. with powers of distress and entry, and a term for years, for further securing the payment of it; which has been found by experience to be much more convenient both to the jointress, and to the heir; as a more certain income is thereby provided for the former, and the latter continues in the possession and management of the whole estate. 48. There is a proviso in the statute 27 Hen. VIII. c. 10. § 7. "That if any such woman be lawfully expulsed or evicted from her said jointure, or from any part thereof, without any fraud or covin, by lawful entry, or by discontinuance of her husband; then every such woman shall be endowed of as much of the residue of her husband's tenements or hereditaments, whereof she was before dowable, as the same lands and tenements so evicted and expulsed shall amount or extend unto." 49. A person, in consideration of a marriage before had, covenanted to stand seised to the use of himself and wife, during their natural lives, and the life of the longest liver. The lands were evicted during the life of the husband; it was held, that the eviction during the coverture was sufficient to entitle the wife to a recompence; though she had accepted the residue of the jointure, after the death of her husband. 50. A jointure was settled before marriage; the husband, during the coverture, purchased other lands, sold them again, and died. The jointure lands were evicted; held, that the wife should have dower of the lands which were purchased, and aliened by her husband, at the time when she was barred of her action for dower. |