Commentaries on American Law (1826-30)
Chancellor James Kent
Of Estates for Life
AN estate of freehold is a denomination which applies equally to an estate of inheritance, and an estate for life.1 Liberum tenementum denoted anciently an estate held by a freeman, independently of the mere will and caprice of the feudal lord, and it was used in contradistinction to the interests of terms for years, and lands in villenage or copyhold, which estates were originally liable to be determined at pleasure. This is the sense in which the terms liberum tenementum, frank tenement, or freehold, are used by Bracton, Fleta, Littleton, and Coke; and therefore Littleton said, that no estate below that for life was a freehold.2 Sir William Blackstone3 confines the description of a freehold estate simply to the incident of livery of seizin, which applies to estates of inheritance, and estates for life; and as those estates were the only ones which could not be conveyed at common law without the solemnity of livery of seizin, no other estates were properly freehold estates. But this criterion of a freehold estate, as being one in fee, or for life, applies as well to estates created by the operation of the statute of uses, as to those which are conveyed by livery of seizin; for the statute which unites the possession to the use, supplies the place of actual livery. Any estate of inheritance, or for life, in real property, whether it be a corporeal or incorporeal hereditament, may justly be denominated a freehold.
By the ancient law, a freehold interest conferred upon the owner a variety of valuable rights and privileges. He became a suitor of the courts, and a judge in the capacity of a juror; he was entitled to vote for members of parliament, and to defend his title to the land; as owner of the immediate freehold, he was a necessary tenant to the praecipe in a real action, and he had a right to call in the aid of the reversioner or remainder-man, when the inheritance was demanded. These rights give him importance and dignity as a freeholder and freeman.4
Estates for life are divided into conventional and legal estates. The first are created by the act of the parties, and the second by operation of law.
(1.) Estates for life by the agreement of the parties, were, at common law, freehold estates of a feudal nature, inasmuch as they were conferred by the same forms and solemnity as estates in fee, and were held by fealty, and the conventional services agreed on between the lord and tenant.5 Sir Henry Spelman6 endeavored to show, that the English law took no notice of feuds until they became hereditary at the Norman conquest; and that fealty, as well as the other feudal incidents, were consequences of the perpetuity of fiefs, and did not belong to estates for years, or for life. The question has now become wholly immaterial in this country, where every real vestige of tenure is annihilated, and the doubt whether fealty was not, in this state, an obligation upon a tenant for life has been completely removed by the act, declaring all estates to be allodial.7 But, considering it as a point connected with the history of our law, it may be observed, that the better opinion would seem to be, that fealty was one of the original incidents of feuds when they were for life. It was as necessary in the life estate as in a fee, and it was in accordance with the spirit of the whole feudal association, that the vassal, on admission to the protection of his lord, and the honors of a feudal investiture, should make an acknowledgment of his submission, with an assurance of service and fidelity. The rites of the feudal investiture were exceedingly solemn, and implied protection and reverence, beneficence and loyalty.8
Life estates may be created by express words, as if A. conveys land to B. for the term of his natural life; or they may arise by construction of law, as if A. conveys land to B. without specifying the term or duration, and without words of limitation. In this last case, B. cannot have an estate in fee, according to the English law, and according to the law of those parts of the United States which have not altered the common law in this particular, but he will take the largest estate which can possibly arise from the grant, and that is an estate for life.9 The life estate may be either for a man’s own life, or for the life of another person, and in this last case, it is termed an estate pur autre vie, which is the lowest species of freehold, and esteemed of less value than an estate for one’s own life. The law in this respect has proceeded upon, known principles of human nature, for in the ordinary opinion of mankind, as well as in the language of Lord Coke, “an estate for a man’s own life is higher than for another man’s life.” A third branch of life estates may also be added, and that is, an estate for the term of the tenant’s own life, and the life of one or more third persons. In this case, the tenant for life has but one freehold limited to his own life, and the life of the other party or parties.10
These estates may be made to depend upon a contingency which can happen and determine the estate before the death of the grantee. Thus, if an estate be given to a woman dum sola, or durante viduitate, or to a person so long as he shall dwell in a particular place, or for any other indeterminate period, as a grant of an estate to a man until he shall have received a given sum out of the rents and profits; in all these cases, the grantee takes an estate for life, but one that is determinable upon the happening of the event on which the contingency depended.11 If the tenant for the life of B. died in the lifetime of B., the estate was open to any general occupant during the life of B.; but if the grant was to A. and his heirs during the life of B., the heir took it as a special occupant. The statute of 29 Charles II. ch. 3. made such an interest devisable, and if not devised, the heir was made chargeable with the estate as assets by descent, and it speaks of him as a special occupant.
The statute of 14 Geo. II. c. 20. went further, and provided that if there was no such special occupant named, and the land be not devised, it was to go in a course of administration as personal estate. This peculiar estate pur autre vie, has been frequently termed a descendible freehold, but it is not an estate of inheritance, and perhaps, strictly speaking, it is not a descendible freehold in England, for the heir does not take by descent. It is a freehold interest sub modo, or for certain purposes, though in other respects it partakes of the nature of personal estate.12 In New York, an estate pur autre vie, whether limited to heirs or otherwise, is deemed a freehold only during the life of the grantee or devisee, and after his death it is deemed a chattel real.13 The interest of every occupant, general or special, is therefore, in this state, totally annihilated; but the statute provisions in other states vary considerably upon this subject. In New Jersey, the act of 1795 is the same as that in New York; but the Virginia statute of 1792 follows in the footsteps of the English statutes, and leaves a scintilla of interest in certain events in the heir as a special occupant; and this I apprehend to be the construction of the statute in Maryland of 1799. In Massachusetts, on the death of the tenant pur autre vie, the law is said to give the estate to his heir; and yet, in that and other states, where the real and personal estates of intestates are distributed in the same way and manner, the question does not seem to be material.
(2.) Tenancy by the curtesy is an estate for life, created by the act of law. When a man marries a woman seized, at any time during the coverture, of an estate of inheritance, in severalty, in coparcenary, or in common, and has issue by her born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life, by the curtesy of England; and it is immaterial whether the issue be living at the time of the seizin, or at the death of the wife, or whether it was born before or after the seizin.14
This estate is not peculiar to the English law, as Littleton erroneously supposes,15 for it is to be found, with some modifications, in the ancient laws of Scotland, Ireland, Normandy, and Germany.16 Sir Martin Wright is of opinion that curtesy was not of feudal origin, for it is laid down expressly in the book of feuds,17 that the husband did not succeed to the feud of the wife without a special investiture; and he adopts the opinion of Craig, who deduces curtesy from one of the rescripts of the emperor Constantine.18 But, whatever may have been the origin of this title, it was clearly and distinctly established in the English law in the time of Glanville; and it was described by Bracton, and especially in a writ, in 11 Hen. III. with the fulness and precision of the law definitions at the present day19 Though the extent of it, as against the adult heir of the wife, may be justly complained of, yet it is remarkable that curtesy has continued unimpaired in England and Scotland,20 and it remains almost entirely unshaken in our American jurisprudence.
Vermont forms an exception, for the title by curtesy has been laid under the equitable restriction, of existing only in the event that the children of the wife entitled to inherit died within age and without children.21 So in South Carolina, tenancy by the curtesy, eo nomine, has ceased by the provision of an act in 1791, relative to the distribution of intestates’ estates, which gives to the husband surviving his wife, the same share of her real estate, as she would have taken out of his, if left a widow, and that is either one moiety or one third of it in fee, according to circumstances. In Georgia, also, tenancy by curtesy does not exist; because all marriages since 1785, vest the real equally with the personal estate of the wife in the husband.
Four things are requisite to an estate by the curtesy, viz. marriage, actual seizin of the wife, issue, and death of the wife, The law vests the estate in the husband on the death of the wife, without entry. His estate is initiate on issue had, and consummate on the death of the wife.
The wife, according to the English law, must have been seized in fact and in deed, and not merely of a seizin in law of an estate of inheritance, to entitle the husband to his curtesy.22 The possession of the lessee for years is the possession of the wife as reversioner; but if there be an outstanding estate for life, the husband cannot be tenant by the curtesy, of the wife’s estate in reversion or remainder, unless the particular estate be ended during the coverture.23 This is still the general rule at law, though in equity the letter of it has been relaxed by a free and literal construction.24 But the circumstances of this country have justly required some qualification of the strict letter of the rule; and if the wife be owner of waste, uncultivated lands, not held adversely, she is deemed seized in fact, so as to entitle her husband to his right of curtesy.25 The title to such property draws to it the possession; and that constructive possession continues, in judgment of law, until an adverse possession be clearly made out; and it is a settled point with our courts, that the owner of such lands is deemed in possession, so as to be able to maintain trespass for entering upon the land and cutting the timber. To entitle the husband to curtesy, the wife must have had such a seizin as will enable her issue to inherit; and therefore if she claims by descent or devise, and dies before entry, the inheritance will go, not to her heir, but to the heir of the person last seized, and the husband will not have his curtesy.26
The rule has been carried still further in this country; and in one state, where the title by curtesy is in other respects as in England, it is decided that it was sufficient for the claim of curtesy, that the wife had title to the land, though she was not actually seized, nor deemed to be so.27 The law of curtesy in Connecticut is made to symmetrize with other parts of their system; and in that state, ownership without seizin, is sufficient to govern the descent or devise of real estate.28
At common law, the husband could not be tenant by the curtesy of a use;29 but it is now settled in equity, that he may be a tenant by the curtesy of an equity of redemption, and of lands of which the wife had only a seizin in equity as a cestui que trust. So, if money be agreed to be laid out in the purchase of land, the money is considered as land in the view of a court of equity, and the husband will be allowed his curtesy.30 Though the husband be entitled to his curtesy in a trust estate, it has been a questionable point whether it must not be such a trust estate as will give him an equitable seizin. The wife must have had a seizin of the freehold and inheritance, simul et semel, either at law or in equity, during the coverture.31 In Roberts v. Dixwell,32 Lord Hardwicke held, that the husband might have his curtesy in an estate devised to the wife for her separate use; but afterwards he declared, that a seizin in law, or in equity, was essential to a tenancy by curtesy. The opinions of Lord Hardwicke in Hearle v. Greenbank, and Roberts v. Dixwell, are conflicting, and cannot be reconciled; and it would seem to have followed, that if the equitable freehold was out in trustees for the separate use of the wife, and kept distinct during the coverture from her equitable remainder in fee, that she wanted that seizin of the entire equitable estate requisite to a tenancy by the curtesy.
But it is now settled otherwise, and the husband is tenant by the curtesy if the wife has an equitable estate of inheritance, notwithstanding the rents and profits are to be paid to her separate use during the coverture. The receipt of the rents and profits are a sufficient seizin in the wife.33 And if lands be devised to the wife for her separate and exclusive use, and with a clear and distinct expression that the husband was not to have any life estate or other interest, but the same was to be for the wife and her heirs; in that case, the Court of Chancery will consider the husband a trustee for the wife and her heirs, and bar him of his curtesy.34 But the husband of a mortgagee in fee is not entitled to his curtesy, though the estate becomes absolute at law, unless there has been a foreclosure, or unless the mortgage has subsisted so long a time as to create a bar to the redemption.35 The rule has now become common learning, and it is well understood that the rights existing in or flowing from the mortgagee, are subject to the claims of the equity of redemption, so long as the same remains in force.
Curtesy applies to qualified as well as to absolute estates in fee, but the distinctions on this point are quite abstruse and subtle. It was declared in Paine’s case,36 to be the common law, that if lands had been given to a woman, and the heirs of her body, and she married and had issue which died, and then the wife died without issue, whereby the estate of the wife was determined, and the inheritance of the land reverted to the donor, yet the husband would be entitled to hold the estate tail for life as tenant by the curtesy, for that was implied in the gift. So, where an estate was devised to a woman in fee, with a devise over in case she died under the age of twenty-one without issue. She married, had issue which died, and then she died under age, by which the devise over took effect; still it was held, that the husband was entitled to his curtesy.37 But there are several cases in which curtesy as well as dower ceases upon the determination of the estate, and this upon the maxim, that the derivative estate cannot continue longer than the primitive estate, cessante statu primitivo cessat derivativus.
As a general rule, curtesy and dower can only be commensurate with the estate of the grantee, and must cease with the determination of that estate. They cease necessarily where the seizin was wrongful, and there be an eviction under a title paramount. The distinction is principally between a condition and a limitation. If the wife’s seizin be determined by a condition in deed expressly annexed to the estate, and the donor or his heirs enter for breach of the condition, the curtesy is defeated, for the donor reassumes his prior and paramount title, and all intermediate rights and encumbrances are destroyed. On the other hand, a limitation merely shifts the estate from one person to another, and leaves the prior seizin undisturbed. The limitation over takes effect, and the estate next in expectancy vests without entry, and the curtesy is preserved. If, however, instead of being a simple limitation, it be a conditional limitation, it is said, that in that case the curtesy would be defeated, for the conditional limitation cuts off, or produces a cesser of the estate upon which it operates. The cases of an estate tail determining by failure of issue, and of a fee determining by executory devise or springing use, are exceptions to the general rule, denying curtesy or dower after the determination of the principal estate.38
Though the wife’s dower be lost by her adultery, no such misconduct on the part of the husband will work a forfeiture of his curtesy; nor will any forfeiture of her estate by the wife defeat the curtesy.39 The reason, says Lord Talbot, why the wife forfeits her dower, and the husband does not forfeit his curtesy, in cases of misconduct, is because the statute of Westm. 2. gave the forfeiture in one case and not in the other.40 This is showing the authority, but not the reciprocal justice or equity of the distinction. There is no parity of justice in the case. So, the husband, as well as any other tenant for life, may forfeit his curtesy by a wrongful alienation, or by making a feoffment, or levying a fine importing a grant in fee, suffering a common recovery, joining the mise in a writ of right, or by any other act tending to the disherison of the reversioner or remainder-man.41
In New York, this rule of the common law existed until lately. The statute of Westm. 2. c. 24. giving a writ applicable to such cases of forfeiture, was re-enacted in 17S7.42 The injury of the alienation to the heir was removed by the statute of 6 Edw. I. c. 3. also re-enacted in 1787.43 That statute declared, that alienations by the tenant by the curtesy, should not bar the issue of the mother, though, the father’s deed bound his heirs to warranty. But every vestige of this law of forfeiture has recently and wisely been abrogated in this state, by a provision in the new statute code, which declares that a conveyance by a tenant for life, or years, of a greater estate than he possessed, or could lawfully convey, shall not work a forfeiture of his estate, nor pass any greater estate or interest than the tenant can lawfully convey; except that the conveyance shall operate by way of estoppel, and conclude the grantor, and his heirs, claiming from him by descent.44
(3.) The next species of life estates created by the act of the law, is that of dower. It exists where a man is seized of an estate of inheritance, and dies in the lifetime of his wife. In that case she is at common law entitled to be endowed for her natural life, of the third part of all the lands whereof her husband was seized, either in deed or in law, at any time during the coverture, and of which any issue which she might have had might by possibility have been heir.45
‘This humane provision of the common law was intended for the sure and competent sustenance of the widow, and the better nurture and education of her children,46 We find the law of dower, in the mode of endowing ad ostium ecclesiae, in common use in the time of Glanville,47 but limited to the third part of the freehold lands which the husband held at the time of the marriage. This limitation is likewise mentioned in Bracton and Fleta;48 whereas, in Magna Carta,49 the law of dower, in its modern sense and enlarged extent, as applying to all lands of which the husband was seized during the coverture, was clearly defined and firmly established. It has continued unchanged in the English law to the present times, and, with some modifications, it has been every where adopted as part of the municipal jurisprudence of the United States.
To the consummation of the title to dower, three things are requisite, viz.: marriage, seizin of the husband, and his death.50 Dower attaches upon all marriages not absolutely void, and existing at the death of the husband; it belongs to a wife de facto, whose marriage is voidable by decree, as well as to a wife de jure. It belongs to a marriage within the age of consent, though the husband dies within that age.51 But a feme covert, being an alien, was not by the common law entitled to be endowed any more than to inherit.52 This rule has been relaxed in some parts of this country, and in Maryland, an alien widow, who married in the United States, and resided here when her husband died, was admitted to dower.53 In New York, while the general rule is admitted, that the alien widow, even of a natural born citizen, is not entitled to dower in her husband’s lands, yet, under the statute of 1802, the widows of aliens entitled by law to hold real estate, are held to be dowable.54 This reasonable construction of the act of 1802, has been confirmed by a general statute provision, declaring that the widows of aliens entitled at the time of their deaths to hold real estate, may be endowed thereof, provided the widow was an inhabitant of the state at the time of the death of the husband.55
The law of marriage belongs to another branch of these disquisitions, and I shall proceed to consider, (1.) Of what estate the wife can be endowed; (2.) How dower will be defeated; (3.) How dower may be barred; (4.) The manner of assigning it.
I. Of what estate the wife may be endowed.
The husband must have had seizin of the land in severalty at some time during the marriage, to entitle the wife to dower. No title to dower attaches on a joint seizin. The mere possibility of the estate being defeated by survivorship prevents dower.56 The old rule went so far as to declare, that if one joint-tenant aliens his share, his wife shall not be endowed, notwithstanding the possibility of the other joint-tenant taking by survivorship is destroyed by the severance, for the husband was never sole seized.57 It is sufficient to give a title to dower, that the husband had a seizin in law without being actually seized; and the reason given for the distinction on this point between dower and curtesy is, that it is not in the wife’s power to procure an actual seizin by the husband’s entry, whereas the husband has always the power of procuring seizin of the wife’s land.58 If land descends to the husband as heir, and he dies before entry, his wife will be entitled to her dower; and this would be the case, even if a stranger should, in’ the intermediate time, by way of abatement, enter upon the land; for the law contemplates a space of time between the death of the ancestor and the entry of the abator, during which time the husband had a seizin in law as heir.59 But it is necessary that the husband should have been seized either in fact or in law, and where the husband had been in possession for years, using the land as his own, and conveying it in fee, the tenant deriving title under him is concluded from controverting the seizin of the husband, in the action of dower.60 If, however, upon the determination of a particular freehold estate, the tenant holds over and continues his seizin, and the husband dies before entry, or if he dies before entry in a case of forfeiture, for a condition broken, his wife is not dowable, because he had no seizin either in fact or in law. The lathes of the husband will prejudice the claim of dower when he has no seizin in law, but not otherwise; and Perkins states general cases in illustration of the rule.61 So, if a lease for life be made before marriage, by a person seized in fee, the wife of the lessor will be excluded from her dower, unless the life estate terminates during coverture, because the husband, though entitled to the reversion in fee, was not seized of the immediate freehold. If the lease was made subsequent to the time that the title to dower attached, the wife is dowable of the land, and defeats the lease by title paramount.62
A transitory seizin for an instant, when the same act that gives the estate to the husband conveys it out of him, as in the case of a conusee of a fine, is not sufficient to give the wife dower.63 The same doctrine applies when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase money in whole or in part. Dower cannot be claimed as against rights under that mortgage. The husband is not deemed sufficiently or beneficially seized by such an instantaneous passage of the fee in and out of him, to entitle his wife to dower as against the mortgagee, and this conclusion is agreeable to the manifest justice of the case.64
The widow, in this case, on foreclosure of the mortgage and sale of the mortgaged premises, will be entitled to her claim to the extent of her dower in the surplus proceeds after satisfying the mortgage and if the heir redeems, or she brings, her writ of dower, she is let in for her dower, on contributing her proportion of the mortgage debt.65 The husband must be seized of a freehold in possession, and of an estate of immediate inheritance in remainder or reversion, to create a title to dower. The freehold and the inheritance must be consolidated, and be in the husband simul et semel, during the marriage, to render the wife dowable. A vested estate, not being a chattel interest, but a freehold in a third person, must not intervene between the freehold and the inheritance of the husband, and therefore, if lands be limited to A. for life, remainder to B. for life, remainder to A. in fee, the wife of A. is not entitled to dower, unless the estate of B. determines during the coverture. The intervening freehold of B. preserves the freehold and the inheritance of A. distinct, and protects them from merger and consolidation, and consequently prevents the attachment of dowers.66
Dower attaches to all real hereditaments, such as rents, commons in gross or appendant, and piscary, provided the husband was seized of an estate of inheritance in the same.67 But in these cases the wife is dowable only by reason of her right to be endowed of the estate to which they are appendant. So, dower is due of iron or other mines wrought during the coverture, but not of mines unopened at the death of the husband; and if the land assigned for dower contains an open mine, the tenant in dower may work it for her own benefit; but it would be waste in her to open and work a mine.68 The claim of dower attaching upon all the lands whereof the husband was seized at any time during the coverture, is a severe dormant encumbrance upon the use and circulation of real property. In point of fact, it is of little or no use, unless the husband dies seized; for it is, in practice, almost universally extinguished, by the act of the wife in concurrence with the husband, upon sales and mortgages of real estate. The existence of the title only serves to increase the expense, and multiply the forms of alienation; and, consequently, in several of these United States, the title to dower has been reduced down, and I am inclined to think wisely, to the lands whereof the husband died seized.
This is the case in the states of Vermont, Connecticut, Ohio, Tennessee and North Carolina.69 In Maine, New Hampshire, and Massachusetts, the widow is not dowable of land in a wild state, unconnected with any cultivated farm, on the principle that the land would be wholly useless to her if she did not improve it, and if she did, she would expose herself to disputes with the heir, and to forfeiture of the estate for waste.70 If the land should be sold by the husband during coverture, and subdued and cultivated by the purchaser before the husband’s death, yet the widow has no right of dower in it, on the principle that the husband was never seized of any estate in the land of which the widow could be endowed.71 In Pennsylvania, the title to dower does not apply to lands of the husband sold on judicial process before or after the husband’s death, nor to lands sold under a mortgage executed by the husband during coverture.72 In Tennessee, the restriction upon the widow’s dower is substantially the same; and in Missouri it would seem to be subject generally ‘to the husband’s debts; whereas, in North Carolina, the widow’s dower is declared by statute to be paramount to the claims of creditors.73
At common law, the wife of a trustee, who had the legal estate in fee, and the wife of a mortgagee, after condition broken, had a valid title at law to dower; for courts of law looked only to the legal estate.74 To avoid this result, it was the ancient practice in mortgages, to join another person with the mortgagee in the conveyance, so as by that joint seizin, to avoid the attachment of the legal title of dower,75 But a court of equity considered the equity of redemption as a right inherent in the land, which barred all persons, and it would always restrain the widow from prosecuting her dower, if the mortgage had been redeemed, or the trustee had conveyed the land according to the direction of the cestui que trust; and it has been long held, and is now definitively settled, that the wife of a trustee is not entitled to dower in the trust estate, any further than the husband had a beneficial interest therein; and if she attempts it at law, equity will restrain her and punish her with costs.76 Nor is the wife of a cestui que trust dowable in an estate to which her husband had only an equitable and not a legal title during coverture. It has, however, been thought reasonable and consistent with principle, that a court of equity should apply the rules and incidents of legal estates to trust property, and give the wife her dower in her husband’s equitable estate.
But at common law, the wife was not dowable of a use, and trusts are now what uses were at the common law; and it is well settled in the English cases, that the wife of a cestui que trust is not dowable in equity out of a trust estate, though the husband is entitled to his curtesy in such an estate. A widow is consequently not dowable in her husband’s equity of redemption, and this anomalous distinction is still preserved in the English law, from the necessity of giving security to title by permanent rules. This policy outweighs the consideration that would naturally be due to consistency of principle. Sir Joseph Jekyll, in Banks v. Sutton,77 held, that the widow might be endowed of an equity of redemption, though the mortgage in fee was executed before the marriage, upon her paying the third of the mortgage money, or keeping down a third of the interest.78 But the reasoning of that learned judge did not prevail to establish his doctrine, and the distinction which he suggested between the case of a trust created by the husband himself, and a trust estate which descended upon, or was limited to him, has been condemned by his successors as loose and unsound.79 The same rule prevails as to an equity of redemption in an estate mortgaged in fee by the husband before marriage, and not redeemed at his death.
In these United States, the equity of the wife’s claim has met with a more gracious reception; and in Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Virginia, and probably in most or all of the other states, the wife is held dowable of an equity of redemption.80 Though the wife joins with her husband in the mortgage, and though the husband should afterwards release the equity, the wife will still be entitled, at his death, to her dower in the lands, subject to the mortgage; and if they are sold under the mortgage, then to her claim as for dower in the surplus proceeds, if any there should be.81 If, however, the mortgage was executed on a purchase before the marriage, and the husband releases the equity after the marriage, his wife’s right of dower is entirely gone, for it never attached, as the mortgage was executed immediately on receiving the purchaser’s deed.82 In the cases of Harrison v. Eldridge, and Barker v. Parker,83 the wife’s interest in the equity of redemption, in a mortgage executed by her and her husband, was held not to be sold by a sale of her husband’s equity, under an execution at law against him only, and the purchaser at the sheriff’s sale took the land subject to the widow’s dower. These cases present a strong instance of the security afforded to the wife’s dower in the equitable estate of her husband. But if the mortgagee in such a case enters under a foreclosure, or after forfeiture of the estate, and by virtue of his rights as mortgagee, the wife’s dower must yield to his superior title; for as against the title under the mortgage, the widow has no right of dower, and the equity of redemption is entirely subordinate to that title. The wife’s dower in an equity of redemption, only applies in case of redemption of the encumbrance by the husband or his representatives, and not when the equity of redemption is released to the mortgagee or conveyed.84
The reason of the American rule giving dower in equities of redemption, is, that the mortgagor, so long as the mortgagee does not exert his right of entry or foreclosure, is regarded as being legally as well as equitably seized in respect to all the world but the mortgagee and his assigns. Even in the view of the English courts of equity, the owner of the equity of redemption is the owner of the land, and the mortgage is regarded as personal assets.85 The rule in several of the states is carried to the extent of giving to the wife her dower in all trust estates. This is said to be the law in Pennsylvania, Maryland, Virginia, and Alabama;86 but the rule in those states must be understood to be limited to the case of trusts in which the husband took a beneficial interest. It could not be applied to trust estates in which the husband was seized in fee of the dry technical title, by way of trust or power, for the sole interest of others.87 In all the other states, except those which have been mentioned, and except Louisiana, where the rights, of married women are regulated by the civil law, and except also Georgia, where tenancy in dower is said to be abolished. the strict English rule on the subject of trust estates is presumed to prevail.
Though the wife be dowable of an equity of redemption, she is, after her husband’s death, if she claims her dower, bound to contribute rateably towards the redemption of the mortgage. If the heir redeems, she contributes by paying, during life, to the heir, the one third of the interest on the amount of the mortgage debt paid by him, or else a gross sum amounting to the value of such an annuity.88 In England, the widow entitled to (lower in an equity of redemption in a mortgage for years, has also upon the same principles applicable to that analogous case, the right to redeem, by paying her proportion of the mortgage debt, and to hold over until she is reimbursed.89
As to the interest of the widow of a mortgagee, the case, and the principles applying to it are different. A mortgage before foreclosure is regarded by the courts in this country, for most purposes, as a chattel interest90 and it is doubted whether the wife of the mortgagee, who dies before foreclosure or entry on the part of her husband, though after the technical forfeiture of the mortgage at law by non-payment at the day, be now even at law entitled to dower in the mortgaged estate. The better opinion I apprehend to be, that she would not be entitled as against
the mortgagor. The New York Revised Statutes,91 have settled this question in this state, by declaring that a widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he acquired an absolute estate therein during the marriage.92
II. In what way dower will be defeated.
Dower will be defeated upon the restoration of the seizin under the prior title in the case of defeasible estates, as in the case of re-entry for a condition broken, which abolishes the intermediate seizin.93 A recovery by actual title against the husband, also defeats the wife’s dower; but if he gave up the land by default, and collusively, the statute of Westm. 2. ch. 4. preserved the wife’s dower, unless the tenant could show affirmatively a good seizin out of the husband and in himself. This statute, according to Perkins, was in affirmance of the common law.94 The principle is, that the wife shall have dower of lands of which her husband was of right seized of an estate of inheritance, and not otherwise. If, therefore, a disseizor die seized, and his wife be endowed, or bring her writ of dower, she will be defeated of her dower on recovery of the lands, or upon entry by the disseizee.95 And the sound principle of making the title to dower rest upon the husband’s right, is carried so far as to allow the wife to falsify even a recovery against her husband upon trial, provided the recovery was upon some other point than the abstract question of right.96 But under the complicated modifications of seizin contemplated in the ancient law, and which are collected and digested by Perkins in his excellent repository of the black letter learning of the Year Books, the seizin of the husband was sometimes defeated so as to bar dower, though the right remained in him; and in other cases, the dower would be preserved though the seizin was defeated, by reason of some prior distinct seizin which had attached in the husband.97
If the husband be seized during coverture of an estate subject to dower, the title will not be defeated by the determination of the estate by its natural limitation, for dower is an incident annexed to the limitation itself, so as to form an incidental part of the estate limited. It is a subsisting interest implied in the limitation of the estate. Thus, if the tenant in fee dies without heirs, by which means the land escheats, or if the tenant in tail dies without heirs, whereby the inheritance reverts to the donor; or if the grantee of a rent in fee dies without heirs; yet, in all these cases, the widow’s dower is preserved.98 By the rules of the common law, dower will determine, or be defeated, with the determination of the estate, or avoidance of the title of the husband by entry as for a condition broken, or by reason of a defective title. So, dower will be defeated by the operation of collateral limitations, as in the case of an estate to a man and his heirs so long as a tree shall stand, or in the case of a grant of land or rent to A. and his heirs till the building of St. Paul’s church is finished, and the contingency happens.99 Whether dower be defeated by a conditional limitation, created by way of shifting use, or executory devise, is hitherto an unsettled and vexed question, largely discussed in the books.100 The estate of the husband is, in a more emphatic degree, overreached and defeated by the taking effect of the limitation over, on these conditional limitations, than in the case of collateral limitations; and the ablest writers on property law are evidently against the authority of the case of Buckworth v. Thirkell, and against the right of the dowress when the fee of the husband is determined by executory devise, or shifting use.101
As a general principle, it may be observed, that the wife’s dower is liable to be defeated by every subsisting claim or encumbrance, in law or equity, existing before the inception of the title, and which would have defeated the husband’s seizin. An agreement by the husband to convey before dower attaches, will, if enforced in equity, extinguish the claim to dower. In equity, lands agreed to be turned into money, or money into lands, are considered as that species of property into which they were agreed to be converted, and the right to dower is regulated in equity by the nature of the property in the equity view of it.102
III. How dower may be barred.
Dower is a title inchoate, and not consummate till the death of the husband, but it is an interest which attaches on the land as soon as there is the concurrence of marriage and seizin. It may be extinguished in various ways, though the husband alone, according to the common law, cannot defeat it by any act in the nature of alienation or charge, without the assent of the wife given and proved according to law; and this is now the declared statute law of New York.103
If the husband and wife levy a fine, or suffer a common recovery, the wife is barred. of her dower.104 This is the only regular way, in the English law, of barring dower after it has duly attached. A devise in fee, by will, to a wife, with a power of disposition of the estate, would not enable her to convey without a fine, for the power would be void, as being inconsistent with the fee.105 But other ingenious devices have been resorted to, in order to avoid the troublesome lien of dower.
If an estate be conveyed to such uses as the purchaser by deed or will should appoint, and in default of appointment to the purchaser in fee, it is settled, that the estate vests in the purchaser as a qualified fee, subject to be divested by an exercise of the power, (for the power is not merged in the fee,) and, consequently, dower attaches. It has been a questionable point, whether a subsequent exercise of the power, as being a prior and paramount right, would not dislocate and carry with it the dower of the purchaser’s wife. The better opinion is, that the dower is defeated by the execution of the power; and yet, in order the more certainly to prevent it, conveyancers have limited the land to the use of the purchaser’s appointee, and in default of appointment, to his use for life, and then to the use of his heirs in fee. Here it does not require the power of appointment to bar the dower, and yet the whole estate is completely in the purchaser’s power.106 A more sure way to bar the dower, was by the introduction of a trustee into the conveyance, and limiting the lands to such persons as the purchaser should appoint, and in default of, and until such appointment, to the purchaser for life, and in case his wife should survive him, then to B. and his heirs during the life of the wife, in trust for the purchaser’s heirs and assigns, with remainder to the heirs of the purchaser in fee.107 But here a very vexatious question arose, whether the trustee must be a party to the conveyance from the purchaser, and eminent counsel have given different opinions on the subject.108 In this country, we are, happily, not very liable to be perplexed by such abstruse questions and artificial rules which have encumbered the subject of dower in England to a grievous extent. Even in these states, where the right of dower, as at common law, exists in full force, the easy mode and familiar practice of barring dower by deed, supersedes the necessity of the ingenious contrivances of English counsel. Rather than have the simplicity and certainty of our jurisprudence destroyed by such mysteries, it would be wiser to make dower depend entirely upon the husband’s seizin in his own right, and to his own use, of an estate in fee simple, pure and absolute, without any condition, limitation, or qualification whatsoever annexed.
The statute of Westm. 2. 13 Edw. I. made adultery in the wife a forfeiture of dower by way of penalty; but reconciliation with the husband would reinstate the wife in her right. The statute was re-enacted in New York in 1787, and has undergone very material modification in the new revised code.109 The same provision has been made by statute in Connecticut, and there is so much justice in it, that an adulterous elopement is probably a plea in bar of dower in all the states in the Union, which protect and enforce the right of dower.110 New York, however, is to be considered as an exception to this remark, for by the revised statutes the wife only forfeits her dower in cases of divorce a vinculo for misconduct, or on conviction of adultery on a bill in chancery by the husband for a divorce, and every plea of elopement in bar of dower would seem to be annihilated.
A divorce, a vinculo matrimonii, bars the claim of dower; for to entitle the party claiming dower, she must have been the wife at the death of the husband.111 But in case of such a divorce for the adultery of the husband, it is doubtless provided in the statute law of those states which authorize the divorce, that a right of dower shall be preserved, or a reasonable provision be made for the wife out of the husband’s estate, by way of indemnity for the loss of her dower, and of her husband’s protection.112 The wife may also be barred of her dower by having a joint estate, usually denominated a jointure, settled upon her and her husband, and in case of his death to be extended to the use of the wife during her life. The jointure in the English law, is founded on the statute of 27 Hen. VIII. c. 10., and its provisions have been very extensively incorporated into the law of this country. It must take effect immediately on the death of the husband; and must be for the wife’s life, and be made and declared to be in satisfaction of her whole dower.113 If the jointure be made before marriage, it bars the dower; but if made after marriage, the wife, on the death of her husband, has her election to accept of the jointure, or to renounce it and apply for her dower at common law; and if she be at any time lawfully evicted of her jointure, or of any part of it, she may repair the loss or deficiency by resorting to her right of dower at common law. Under the English law, adultery is no forfeiture of the jointure, or of articles of agreement to settle a jointure, though it be a bar to dower; and the distinction depends upon a positive provision by statute for the one case, and none for the other.114
It was a rule of law deduced from the statute of 27 Hen. VIII. making a jointure a bar, that the settlement, to be a bar of dower, must be to the wife herself, and not to any other person in trust for her, provided the estate remains in the trustee.115 A conveyance to trustees for the use of the wife after her husband’s death, is, in point of law, no jointure; but such a settlement, if in other respects good, will be enforced in chancery as an equitable bar of dower; and courts of equity have greatly relieved the parties from the strict legal construction given to the English statute.116 It has also been settled, after great discussion in the English House of Lords, that a jointure on an infant before coverture, bars her dower, notwithstanding her infancy, on the ground of its being a provision by the husband for the wife’s support. It was considered to be a bar, a provisione viri, and not ex contractu, and the assent of the wife was held not to be an operative circumstance.117
In New York, the statute of 27 Hen. VIII, concerning jointures, was, in 1787, adopted verbatim,118 but it has been altered and improved by the new revised statutes; and the principle in equity, allowing jointures to exist also by a conveyance of lands to a trustee in trust for the wife, has been introduced into the statute law, which provides that if “an estate in lands be conveyed to a person and his intended wife, or to such intended wife alone, or to any other person in trust for such person and his intended wife, or in trust for such wife alone, for the purpose of creating a jointure for such intended wife, and with her assent, such jointure shall be a bar to any right or claim of dower, etc. and the evidence of the assent of the wife shall be, by her becoming a party to the conveyance, if of age, and if an infant, by her joining with her father or guardian therein.”119
The statute of 27 Hen. VIII. further provided, that if the settlement in jointure was made after marriage, the wife should have her election, if she survived her husband, to take it in lieu of dower, or to reject it, and betake herself to her dower at common law. So, if she was fairly evicted by law from her jointure, or any part of it, the deficiency was to be supplied from other lands, whereof she would have been otherwise dowable. Both these provisions formed a part in the statute of this state of 1787, and they have probably been adopted in all the states where the law of jointure in bar of dower has been introduced.120
It is likewise settled, that a collateral satisfaction, consisting of money, or other chattel interests, given by will, and accepted by the wife after her husband’s death, will constitute an equitable bar of dower. The Court of Chancery will give to the widow her election to accept of the testamentary provision, or to refuse it, and betake herself to her dower at law; and will even allow her this election after acceptance and enjoyment, for some time, of the testamentary provision, if it appears that she acted without full knowledge and understanding of her true situation and rights, and of the consequence of her acceptance.121 It is generally said, however, that though such a collateral satisfaction be good in equity, it is not pleadable in bar of dower at law.122 But, in the modern cases, the language, and the better opinion is, that if the wife has fairly and understandingly made her election between her dower and the testamentary provision, and in favor of the latter, she will be held to her election at law, as well as in equity. There is no difference in principle between the courts of law and equity on this subject, and the difficulty of reaching the justice of the case, has frequently thrown these questions into equity.123 The testamentary provision in lieu of dower, in order to render it such, even with the widow’s acceptance of it, must be declared in express terms, to be given in lieu of dower, or that intention must be deduced by clear and manifest implication from the will, founded on the fact that the claim of dower would be inconsistent with the will, or so repugnant to its dispositions as to disturb and defeat them.124
The New York Revised Statutes125 have embodied most of these principles of law and equity, with some variations and amendments. They declare, according to the. law of Connecticut, that any pecuniary provision made before marriage in lieu of dower, if duly assented to by the wife, shall bar her dower. But any settlement by land, or any pecuniary provision, if made after marriage, or if before marriage without the wife’s assent, or if made by will, shall not bind her, though declared to be in lieu of dower; but she shall be obliged to make her election between her dower and the jointure, or pecuniary provision. The widow shall be deemed to have elected to have taken the jointure, devise, or pecuniary provision, unless, within one year after the husband’s death, she shall enter on the lands to be assigned her for dower, or commence proceedings to recover the same.126 It is likewise declared, that every jointure, devise, and pecuniary provision in lieu of dower, shall be forfeited by the woman for whose benefit the same shall be made, in the same cases in which she would forfeit her dower.127
It was a principle of the common law, that if the husband, seized of an estate of inheritance, exchanged it for other lands, the wife should not have dower of both estates, but should be put to her election.128 This principle is also introduced into the New York Revised Statutes, and the widow is required to evince her election to take dower out of the lands given in exchange, by the commencement of proceedings to recover it, within one year after her husband’s death, or else she shall be bound to take her dower out of the lands received in exchange.129
The usual way of barring dower in this country, by the voluntary act of the wife, is not by fine, as in England, but by her joining with her husband in a deed of conveyance of the land, containing apt words of grant or release on her part, and acknowledging the same privately apart from her husband, in the mode prescribed by the statute laws of the several states. This practice is probably coeval with the settlement of the country, and it has been supposed to have taken its rise in Massachusetts from the colonial act of 1644.130 The wife must join with her husband in the deed, and there must be apt words of grant showing an intention on her part to relinquish her dower.131 This is the English rule in respect to a fine, and the wife’s dower is barred by a fine, either wholly, or only pro tanto, according to the declared intent. It is almost a matter of course, in this country, for the wife to unite with her husband in all deeds and mortgages of his lands; and though the formality of her separate acknowledgment is generally required to render her act binding, yet, by the laws of New York, if she resides out of the state, the simple execution of the (Iced by her, will be sufficient to bar her dower, as to the lands in this state so conveyed, equally as if she were a feme sole.132
IV. The manner of assigning dower.
To give greater facility to the attainment of the right of dower, (and which Lord Coke informs us was one of the three principal favorites of the common law,133) it was provided by Magna Carta,134 that the widow should give nothing for her dower, and that she should tarry in the chief house of her husband for forty days (and which are called the widow’s quarantine) after the death of her husband, within which time her dower should be assigned her; and that, in the mean time, she should have reasonable estovers, or maintenance, out of the estate. The provision that the widow should pay nothing for her dower, was with the generous ‘intention of taking away the uncourtly and oppressive claim of the feudal lord, for a fine upon allowing the widow to be endowed. This declaration of Magna Carta is, probably, the law in all the United States. In New York the provision is re-enacted, and with the addition that she shall not be liable for any rent during the forty days, though the allowance of maintenance necessarily implied that she was to live free of rent.135 The widow cannot enter for her dower until it be assigned her, nor can she alien it so as to enable the grantee to sue for it in his own name. She has no estate in the lands until assignment; and after the expiration of her quarantine, the heir may put her out of possession, and drive her to her suit for her dower. She has no right to tarry in her husband’s house beyond the forty days; and it is not until her dower has been duly assigned, that the widow acquires a vested estate for life, which will enable her to sustain her ejectment.136
It was decided in New Jersey, that though the widow could not enter upon the land until dower was assigned, yet, being in possession, she could not be ousted by the owner of the fee in ejectment, unless her dower was assigned her.137 This decision is against the decided weight of English and American authority, but it was correctly decided, according to the very reasonable statute law of New Jersey, which gives to the widow the right to hold and enjoy the mansion house, and the messuage and plantation thereto belonging, until dower be assigned; and she has, therefore, a freehold for life, unless sooner defeated by the act of the heir.138 There is the same statute provision in Kentucky and Virginia, and the rule in Connecticut is the same; and, upon the death of her husband, the widow is by law deemed in possession as a tenant in common with the heirs, to the extent of her right of dower; and her right of entry does not depend upon the assignment of dower, which is a mere severance of the common estate.139
In North Carolina, the law provides for the widow’s support for one year, and it is suggested that the time of her quarantine may be thereby enlarged. But though she be an occupant, the legal title before the assignment of dower is exclusively in the heirs, and they are occupants also.140
The assignment of dower may be made in pais by parol, by the party who has the freehold; but if the dower be not assigned within the forty days, by the heir or devisee, or other person seized of the lands subjected to dower, the widow has her action at law by writ of dower unde nihil habet, or by writ of right of dower against the tenant of the freehold. The former is to be preferred, because the widow, in that case, recovers damages for non-assignment of her dower, which she would not in a writ of right; and it lies, in every case, excepting only where the widow has received part of her dower of the same person who is sued, and out of lands in the same town.141 The writ of right of dower is of rare occurrence, if not entirely unknown, in this country; and the learned author of the Treatise on the Pleadings and Practice in Real Actions, says,142 that he had never known any such action in Massachusetts. On recovery at law, the sheriff delivers to the demandant possession of her dower by metes and bounds, if the subject be properly devisable, and the lands be held in severalty.143 If the dower arises from rent, or other incorporeal hereditament, as commons or piscary, of which the husband was seized in fee, the third part of the profits is appropriated to the widow.144 If the property be not divisible, as of a mill, she is dowable in a special manner, and has either one third of the toll, or the entire mill for-every third month.145 The assignment of dower of a mine should be by metes and bounds, if practicable; and if not, then by a proportion of the profits, or separate alternate enjoyment of the whole for short proportionate periods.146 The widow may also consent to take her dower of the undivided third part of the estate, without having it set off by metes and bounds.147 Of lands held in common, the wife has a third part of the share of her husband assigned to her, to be held by her in common with the other tenants.148 A case may occur in which there may be two or more widows to be endowed out of the same messuage.
Lord Coke alludes to such a case,149 and the point was proved, and learnedly illustrated, in Geer v. Hamblin.150 If A. be seized, and has a wife, and sells to B., who has a wife, and the husbands then die, leaving their wives surviving, the wife of B. will be dowable of one third of two thirds in the first instance, and of the one third of the remaining one third on the death of the widow of A., who, having the elder title in dower, is to be first satisfied of her dower out of the whole farm.151 The widow is not obliged to accept of a single room or chamber in the capital messuage, and unless she consents to it, and there be no other equivalent lands, a rent must be assigned to her issuing out of the mansion house.152
If the husband dies seized, the heirs may assign when they please; but if they delay it, and improve the land, and render it more valuable by cultivation or buildings, the widow will be entitled to her dower according to the value of the land, exclusive of the emblements, at the time of the assignment; and the heir is to be presumed to have made the improvements with a knowledge of his rights and obligations.153 But the widow is not entitled to damages for the detention of the dower, unless the husband died seized.154 The statute of Merton, 20 Hen. III. gave damages in that case, equal to the value of the dower from the time of the husband’s death; but the construction is, that the damages are computed only from the time of making the demand of the heir.155 The provision in the statute of Merton was adopted in New York in 1787, and in Massachusetts in 1783 and 1816, and the damages in the case of detention of dower rest probably on similar grounds throughout the United States. In cases of alienation by the husband, the general rule is, that the widow takes her dower according to the value of the land at the time of the alienation, and not according to its subsequent increased or improved value. This was the ancient and settled rule of the common law;156 and the reason of the rule is said to be, that the heir was not bound to warrant, except according to the value of the lands as it was at the time of the feoffment; and if the wife were to recover according to the improved value, subsequent to the alienation, she would recover more against the feoffee than he would recover in value against the heir.157 The reason assigned in the old books for the rule has been ably criticized and questioned in this country; but the rule itself is founded in justice and sound policy; and whether the land be improved in value, or be impaired by acts of the party subsequently, the endowment, in every event of that kind, is to be according to the value at the time of the alienation, in case the husband sold in his lifetime, and according to the value at the time of the assignment, if the land descended to the heir. This is the doctrine in the American cases, and they are in conformity with the general principles of the English law, as to the time from which the value of the dower is to be computed, both as it respects the alienee of the husband, and the heir.158 If the husband continues in possession after he has mortgaged the land, and makes improvements, the wife will have the benefit of them in computing the value of her dower, though the equity of redemption should afterwards be barred or released; for the foreclosure or release is to be deemed the period of alienation.159
As the title to dower is consummate by the husband’s death, when the wife is endowed she is in from the death of her husband, and, like any other tenant of the freehold, she takes, upon a recovery, whatever is then annexed to the freehold, whether it be so by folly, by mistake, or otherwise. The heir’s possession is avoided, as not being rightly acquired, as to the widow’s third part; and the rule that subjects the improvements as well as the land in the possession of the heir to the claim of dower, seems a natural result of the general principles of the common law, which gave the improvements to the owner of the soil.160 But an important distinction is taken on this subject, and it has been made a question, whether the widow be entitled to the advantage of the increased value of the land, arising from extrinsic or collateral circumstances, unconnected with the direct improvements of the alienee by his particular labor and expenditures; such as the enhanced value arising from, the fit. creasing prosperity of the country, or the erection of valuable establishments in the neighborhood. The allowance would seem to be reasonable and just, inasmuch, as the widow takes the risk of deterioration of the estate, arising from public misfortunes, or the acts of the party. If the’ land in the intermediate period has risen in value, she ought to receive the benefit; if it has depreciated she sustains the loss. Ch. J. Parsons, in Gore v. Brazier,161 was inclined to the opinion, that the widow ought to be allowed for the increased value arising from extrinsic causes; and the supreme court of Pennsylvania, in an elaborate judgment delivered by the Chief Justice in Thompson v. Merron,162 decided, that the widow was to take no advantage of any increased rise in value, by reason of improvements of any kind made by the purchaser, but, throwing those out of the estimate, she was to be endowed according to the value at the time of the assignment. This doctrine is declared by Mr. Justice Story,163 to stand upon solid principles, and the general analogies of the law, and he adopts it. The distinction is supposed not to have been within the purview of the ancient authorities.
In New York, the very point arose, and was discussed, in Dorchester v. Coventry,164 and the court adhered to the general rule, without giving it any such qualification; and they confined the widow to her dower computed according to the value of the land at the time of the alienation, though it had arisen greatly in value afterwards, exclusive of buildings erected by the alienee. The same doctrine was followed in Shaw v. White,165 and the language of the statute to which these decisions alluded,166 was, that the dower of any lands sold by the husband should be “according to the value of the lands, exclusive of the improvements made since the sale.” But that statute required, in case of improvements made by the heir, or other proprietor, upon lands previously wild and unproductive, that the allotment of dower be so made, as to give those improvements to the heir or owner. The construction of the statute, as to this question, did not arise and was not given in Humphrey v. Phinney;167 and it may be doubted whether the statute has not received too strict a construction in the subsequent cases. The better and the more reasonable general American doctrine upon this subject I apprehend to be, that the improved value of the land, from which the widow is to be excluded in the assignment of her dower, even as against a purchaser, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes.168 The New York revised statutes169 have declared, that if the husband dies seized, the widow shall recover damages for withholding her dower, and the damages shall be one third of the annual value of the mesne profits of the lands in which she shall recover dower, to be estimated from the time of the husband’s death in the suit against the heirs, and from the time of the demand of her dower in the suit against the alienee of the heir, or other persons, and not to exceed six years in the whole. No damages are to be estimated for the use of any permanent improvements made after the death of the husband. A more necessary provision respecting damages as against the alienee of the husband, (for on that point there is a difference between the decisions in this and in other states,) is altogether omitted.
When the certainty of the estate belonging to the widow as dower,, is ascertained by assignment, the estate does not pass by the assignment, but the seizin of the heir in defeated ab initio, and the dowress is in, in tat of law, of the seizin of her husband, and this is the reason that neither livery nor writing is essential to the validity of an assignment in pais.170 Every assignment of dower by the heir, or by the sheriff on a recovery against the heir, implies a warranty so far, that the widow, on being evicted by title paramount, may recover in value a third part of the two remaining third parts of the land whereof she was dowable.171 In Bedingfield’s case172 it was held, that the widow, in such, a case, was to be endowed anew of other lands descended to the heir, but where the assignment was by the alienee of the husband, and she was impleaded, she was not to vouch the alienee to be newly endowed, because of, the greater privity in the one case than in the other. It is likewise provided by the new statute law of New York,173 that upon the acceptance of an assignment of dower by the heir, in satisfaction of the widow’s claim upon all the lands of her husband, it may be pleaded in bar of any future claim on her part for dower, even by the grantee of the husband.
In the English law, the wife’s remedy by action for her dower, is not within the ordinary statutes of limitations, but a fine levied by the husband, or his alienee or heir, will bar her by force of the statute of non-claims, unless she brings her action within five years after her title accrues, and her disabilities (if any) removed.174 In South Carolina it was held, in Ramsay v. Dozier,175 and again in Boyle v. Rowand,176 that time was a bar to dower, as well as to other, claims. But in the English law there is no bar, and as to the account against the heir for the mesne profits, the widow is entitled to the same from the time her title accrues; and, unless some special cause be shown, courts of equity carry the account book to the death of the husband.177 The New York Revised Statutes178 have given a precise period of limitation, and require dower, to be demanded within twenty years from the time of the death of the husband, or from the termination of the disabilities therein mentioned, one of which is imprisonment on a criminal charge or conviction.179
Dower may be recovered by bill in equity, as well as by action at law. The jurisdiction of Chancery over the claim of dower, has been thoroughly examined, clearly asserted, and definitively established. It is a jurisdiction concurrent with that at law, and when the legal title to dower is in controversy, it must be settled at law; but if that be admitted or settled, full and effectual relief can be granted to the widow in equity, both as to the assignment of dower, and the damages. The equity jurisdiction was so well established, and in such exercise in England, that Lord Loughborough said, that writs of dower had almost gone out of practice.180 The equity jurisdiction has been equally entertained in this country,181 though the writ of dower unde nihil habet, is the remedy by suit most in practice. The claim of dower is considered, in New Jersey, which has a distinct and well-organized equity system, as emphatically, if not exclusively, within the cognizance of the common law courts.182
In addition to the legal remedies at law and in equity, the surrogates in the several counties in this state, are empowered and directed, upon the application either of the widow, or of the heirs or owners, to appoint three freeholders to set off by admeasurement the widow’s dower.183 This convenient and summary mode of assignment of dower under the direction of the courts of probates in the several states, has, probably, in a great degree, superseded the common law remedy by action. When the widow is legally seized of her freehold estate, as dowress, she may bequeath the crop in the ground of the land held by her in dower.184
Having finished a review of the several estates of freehold not of inheritance, we proceed to take notice of the principal incidents which attend them, and which are necessary for their safe and convenient enjoyment, and for the better protection of the inheritance.
(1.) Every tenant for life is entitled, of common right, to take reasonable estovers, that is, wood from off the land for fuel, fences, agricultural erections, and other necessary improvements. According to Sir Edward Coke, they are estoveria aedificandi, ardendi, arandi et claudendi.185 But, under the pretense of estovers, the tenant must not destroy the timber, nor do any other permanent injury to the inheritance, for that would expose him to the action and penalties of waste.186
(2.) He is entitled, through his lawful representatives, to the profits of the growing crops, in case the estate determines by his death before the produce can be gathered. The profits are termed emblements, and are given on very obvious principles of justice and policy, as the time of the determination of the estate is uncertain. He who rightfully sows ought to reap the profits of his labor, and the emblements are confined to the products of the earth, arising from the annual labor of the tenant. The rule extends to every case where the estate for life determines; by the act of God, or by the act of the law, and not to cases where the estate is determined by the voluntary, wilful, or wrongful act of the tenant himself.187 The doctrine of emblements is, applicable only to the products of the earth which are annual, and raised by the yearly and labor of the tenant. It applies to grain, garden roots, etc., but not to grass, or fruits, which are the natural product of the soil, and do not essentially owe their annual existence to the cultivation of man. The tenant, under the protection of this rule, is invited to agricultural industry, without the apprehension of loss by reason of the unforeseen contingency of his death.188
(3.) Tenants for life have the power of Making under any lesser term, and the same rights and privileges are incidental to those under tenants which belong to the original tenants for life. If the original estate determines by the death of the tenant for life, before the day of payment of rent from the under tenant, the persona} representatives of the tenant for life, are entitled to recover the whole, or a proportional part of the rent in arrear.189 The under-tenant is likewise entitled to the emblements, and to the possession, so far as it may be necessary to preserve and gather the crop.190
(4.) In estates for life; if the estate be charged with an encumbrance, the tenant for life is bound in equity to keep down the interest out of the rents and profits, but he is not chargeable with the encumbrance itself and, he is not bound to, extinguish it. The doctrine arises: from a very reasonable rule in equity, and applies, between a tenant for life, and other parties having successive interests. Its object is to make every part of the ownership of a real estate bear a rateable part of an encumbrance thereon, and to apportion the burden equitably between the parties in interest, where there is a possession. The tenant for life contributes only during the time he enjoyed the estate.191 If he pays off an encumbrance on the estate, he is, prima facie, entitled to that charge for his own benefit, with the qualification of having no interest during his life. 192 And if the encumbrancer neglects for years to collect his interest from the tenant for life, he may, notwithstanding, collect the arrears from the remainder-man, though the assets of the estate of the tenant for life would equitably be answerable to the remainder-man193 for his indemnity, and they remain answerable for arrears of interest accrued in his lifetime.
The true principle on this subject is, that the tenant for life is to keep down the annual interest, even though it should exhaust the rents and profits; and the whole estate is to bear the charge of the principal in just proportions. The old rule was, that the life estate was to bear one third part of the entire debt, and the remainder of the estate the residue.194 But the Master of the Rolls, in White v. White,195 declared this to be a most absurd rule; and he held, that the interest alone arising during the life estate, was the tenant’s fair proportion. Lord Eldon said, that this was the rule as to mortgages, and other charges on the whole inheritance. But it is now the doctrine in the English chancery, in respect to charge upon renewal leases, that the tenant for life contributes in proportion to the benefit he derives from the renewed interest in the estate. The proportion that he is to contribute depends upon the special circumstances of the case, and the practice is, to have it settled on a reference to a master.196 The rents and profits are to be applied in discharge of the arrears of interest accruing during a former, as well as during an existing tenancy for life, and remaining unpaid; and this hard rule was explicitly declared by the Master of the Rolls, in Penhyrn v. Hughes.197 The rule applies to a tenant in dower, and by curtesy, as well as to any other tenant for life, with this qualification, that a dowress is only bound to keep down one third part of the accruing interest, because she takes only one third part of the estate; and if she redeems the whole mortgage, she would have a claim on the estate for two thirds of the interest of the mortgage so redeemed, and the whole of the principal.198
But while tenants for life are entitled to these privileges, the law has discovered a similar solicitude for those who have an interest in the inheritance in remainder or reversion. If, therefore, the tenant for life should by neglect or wantonness, occasion any permanent waste to the substance of the estate, whether the waste be voluntary or permissive,199 as by pulling down houses, suffering them to go to decay from the want of ordinary care; cutting the timber unnecessarily; opening mines; or changing one species of land into another; he becomes liable, in a suit by the person entitled to the immediate estate of inheritance, to answer in damages, as well as to have his future operations stayed.200
If the land be wholly wild and uncultivated, it has been held that the tenant may clear part of it for the purpose of cultivation, but he must leave wood and timber sufficient for the permanent use of the farm; and it is a question of fact for a jury, what extent of wood may be cut down in such cases, without exposing the party to the charge of waste.201 The American doctrine on the subject of waste, is somewhat varied from the English law, and is more enlarged and better accommodated to the circumstances of a new and growing country. In Pennsylvania, the law as to the tenant in dower on the subject of clearing wild lands assigned for dower, accords with the rule in New York.202 In Massachusetts, the inclination of the supreme court seemed to be otherwise, and in favor of the strict English rule; and that was one of the reasons assigned for holding the widow not dowable of such lands.203 In Virginia, it is admitted that the law of waste is varied from that in England; and the tenant in dower, in working coal mines already opened, may penetrate into new seams, and sink new shafts, without being chargeable with waste.204 So, in North Carolina, it has been held not to be waste to clear tillable land for the necessary support of the tenant’s family, though the timber be destroyed in clearing.205 And in Ballentine v. Poyner,206 it was admitted that the tenant in dower might use timber for making staves and shingles, when that was the ordinary use and the only use to be made of such lands. She was only restricted from clearing lands for cultivation, when there was already sufficient cleared for that purpose.
The tenant by the curtesy, and in dower, and for life or years, are answerable for waste committed by a stranger, and they take their remedy over against him207 and it is a general principle, that the tenant, without some special agreement to the contrary, is responsible to the reversioner for all injuries amounting to waste, done to the premises during his term, by whomsoever the injuries may have been committed, with the exception of the acts of God, and public enemies, and the acts of the reversioner himself. The tenant is like a common carrier, and the law in this instance is founded on the same great principles of public policy. The landlord cannot protect the property against strangers, and the tenant is on the spot, and presumed to be able to protect it.208
The ancient remedies for waste by writ of estrepement, and writ of waste at common law, are essentially obsolete; and the modern practice in this country, as well as in England, is to resort to the prompt and efficacious remedy by an injunction bill, to stop the commission of waste; or by a special action on the case in the nature of waste, to recover damages.209 The modern remedies are much more convenient, simple, and prompt, and a judicious substitute for the dilatory proceedings and formidable apparatus of the ancient law.
At common law, no prohibition against waste lay against the lessee for life or years, deriving his interest from the act of the party. The remedy was confined to those tenants who derived their interest from the act of the law; but the timber cut was, at common law, the property of the owner of the inheritance; and the words in the lease, with. out impeachment of waste, had the effect of transferring to the lessee the property of the timber. The modern remedy in chancery by injunction is broader than that at law; and equity will interpose in many cases, and stay waste where there is no remedy at law. If there was an intermediate estate for life, between the lessee for life and the remainder-man or reversioner in fee, the action of waste would not lie at law, for it lay only on behalf of him who had the next immediate estate of inheritance.210 Chancery will interpose in that case, and also where the tenant affects the inheritance in an unreasonable and unconscientious manner, even though the lease be granted without impeachment of waste.211 The chancery remedy is limited to cases in which the title is clear and undisputed;212 and the remedy by an action on the case in the nature of waste has been held213 not to lie for permissive waste. If this last doctrine be well founded, (and I think it may very reasonably be doubted,214) then recourse must be had, in certain cases, as where the premises are negligently suffered to be dilapidated, to the old and sure remedy of a writ of waste, and which, as far as it is founded either upon the common law, or upon the statute of Gloucester,215 has been generally received as law in this country, and is applicable to all kinds of tenants for life and years. It is frequently said by Lord Coke in his Commentaries,216 and it was so declared by the K. B. in the Countess of Shrewsbury’s case,217 that waste would not lie at
common law against the lessee for life or years, for the lessor might have restrained him by covenant or condition. But Mr. Reeve, who was thoroughly read in the ancient English law, insists that
the common law provided a remedy against waste by all tenants for life and for years, and that the statute of Gloucester only made the remedy more specific and certain.218
The provision in the statute of Gloucester, giving by way of penalty, the forfeiture of the place wasted and treble damages, was re-enacted in New York and Virginia,219 and it is the acknowledged rule of recovery in some of the other states in the action of waste.220 It may be considered as imported by our ancestors, with the whole body of the common and statute law then existing, and applicable to our local circumstances. As far as the provisions of that statute are received as law in this country, the recovery in the action of waste, for waste done or permitted, is the place wasted, and treble damages; but the writ of waste has gone out of use, and a special action on the case, in the nature of waste, is the substitute; and this latter action, which has superseded the common law remedy, relieves the tenant from the penal consequences of waste under the statute of Gloucester. The plaintiff, in this action upon the case, recovers no more than the actual damages which the premises have sustained.221
Under the head of permissive waste, the tenant is answerable if the house or other buildings on the premises be destroyed by fire through his carelessness or negligence, and he must rebuild in a convenient time at his own expense.222 The statute of 6 Anne, c. 31., guarded the tenant from the consequences of accidental misfortune of that kind, by declaring, that no suit should be brought against any person in whose house or chamber any fire should accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby. Until this statute, tenants by the curtesy, and in dower, were responsible at common law for accidental fire; and tenants for life, and years, created by the act of the parties, were responsible also, under the statute of Gloucester, as for permissive waste.223 There does not appear to have been any question raised, and judicially decided, in this country, respecting the tenant’s responsibility for accidental fires, as coming under the head of this species of waste. I am not aware that the statute of Anne has ever been formally adopted in any of the states. It was intimated, upon the argument in the case of White v. Wagner,224 that the question had not been decided, and conflicting suggestions were made by counsel. Perhaps the universal silence in our courts upon the subject of any such responsibility of the tenant for accidental fires, is presumptive evidence that the doctrine of permissive waste has never been introduced and carried to that extent in the common law jurisprudence of the United States.
Estates for life were, by the common law, liable to forfeiture, not only for waste, but by alienation in fee. Such an alienation, according to the law of feuds, amounted to a renunciation of the feudal relation, and worked a forfeiture of the vassal’s estate to the person entitled to the inheritance in reversion or remainder.225 Alienation by feoffment; with livery of seizin, or by matter of record, as by fine or recovery, of a greater estate than the tenant for life was entitled to, by divesting the seizin, and turning the estate of the rightful owner into a right of entry, operated as a forfeiture of the life estate, unless the person in remainder or reversion, was a party to the assurance.226 But an alienation for the life of the tenant himself, did not work any wrong, and, therefore, says Lord Coke,227 it was not within the statute of Gloucester. So, a mere grant or release by the tenant for life, passed at common law only what he might lawfully grant. In New York and Pennsylvania, this feudal notion of forfeiture is expressly renounced, and the doctrine placed upon just and reasonable grounds. Any conveyance by a tenant for life, or years, of a greater estate than he possessed, or could lawfully convey, passes only the title and estate which the tenant could lawfully grant. It is, therefore, an innocent conveyance, whatever the form of the conveyance may be, and produces no forfeiture of the particular estate. It does not, like a feoffment with livery at common law, ransack the whole estate, and extinguish every right and power connected with it.228
The same conclusion must follow from the general provision in the statute of Virginia of December, 1783, and from the forms of conveyance in use in the other states. A conveyance in fee by a tenant for life, by bargain and sale, or by lease and release, does not work a discontinuance. Conveyances under the Statute of Uses, are innocent conveyances, since they operate only to the extent of the grantor’s right, and occasion no forfeiture; though, if a general warranty be annexed to these conveyances, it would, at common law, work a discontinuance, when the warranty descends upon him who has right to the lands.229 We have never adopted, in this country, the common law conveyance by feoffment and livery, and we rarely use that by fine, or common recovery, or any other than the conveyance by lease and release, or, more commonly, by deed of bargain and sale. In New Jersey, by an act in 1798, alienations by the husband of the wife’s lands, or of his curtesy, or by a dowress having an estate in dower, or other estate for life, and whether made with or without warranty, do not produce any prejudice to the persons entitled to the inheritance, but the dowress forfeits her particular estate. If, however, there be in any state a forfeiture of the life estate by the act of the tenant for life, the party entitled to enter by reason of the forfeiture, is not bound to enter, and may wait until the natural termination of the life estate.230
1. This is even made a matter of legislative declaration, in the N.Y. Revised Statutes, vol. i. 772. sec. 5.
2. Fuerunt in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia, vel per liberas consuetudines. Bracton, lib. 1. p. 7. Liberum tenementum non habuit, qui non tenuit nisi ad terminum annorum. Fleta, lib. 5. c. 5. sec. 16. Litt. sec. 57. Co. Litt. 43. b. In the French law, the liberi, or freemen, were defined to be celles qui ne recognoissent superieure en Feidalite. So, in Doomsday, the liberi were expressed to be qui ire poterant quo volebant. Dalrymple on Feudal Property, p. 11.
3. Com. vol. ii. 104.
4. Sullivan’s Lectures on Feudal Law, lec. 6. Preston on Estates, vol. i. 206-210.
5. Wright on Tenures, 190.
6. Treatise of Feuds and Tenures: ch. 2.
7. N.Y. Revised Statutes, vol. i. 718. sec. 3.
8. See Lib. Feud. Jib. 1. tit. 1. and lib. 2. tit. 5, 6, 7., where the vassal for life is termed fidelis, and every vassal was bound by oath to his lord quod sibi erit fidelis, ad ultimum diem vita contra omnem hominem, excepto rege et quod credentiam sibi commissam non manifestabit. Doctor Gilbert Stuart, in his View of Society in Europe, p. 87, 88., was of the same opinion, and he explored feudal antiquities with a keen spirit of research, sharpened by controversy. His work is deserving of the study of the legal antiquarian, if for no other purpose, yet for the sagacity and elegance with which he comments upon the sketches of barbarian manners, as they remain embodied in the clear and unadorned pages of Caesar, and the nervous and profound text of Tacitus.
9. Co. Litt. 42. a,
10. Co. Litt. 41. b. There are several subtle distinctions in the books, growing out of this topic, whereof students, according to Lord Coke, “may disport themselves for a time,” and Mr. Ram has endeavored to do so, in a puzzling note to his recent Outline of the Law of Tenure and Tenancy, p. 33.
11. Bracton, lib. 4. ch. xxviii. sec. 1. Co. Litt. 42. a.
12. Lord Kenyon in Doe v. Luxton, 6 Term Rep. 289.
13. N.Y. Revised Statutxr, vo1. 1. 722. sec. 6.
14. Litt. sec. 35. 52. Co. Litt. 29. b. Paine’s case, 8 Co. 34.
15. Litt. sec. 35.
16. Co. Litt. 30. a. Wright on Tenures, 193. 2 Blacks. Com. 126. In Normandy, according to the Coutumier, ch. 119. the curtesy lasted only during the widowhood of the husband. 1 Hale’s Hist. C. Law, 219.
17. Feud. lib. 1. tit. 15. lib. 2. tit. 13.
18. Wright on Tenures, 194.
19. Glanville, lib. 7. ch. 18. Bracton, lib. 5. c. 30. sec. 7. Hale’s Hist. Com. Law, ch. 9. In the form of the writ given by Sir Matthew Hale, in which Henry III. directs the English laws to be observed in Ireland, tenancy by the curtesy is stated even at that time, to be consuetudo et lex i nglice; and theMirror, ch. 1. sec. 3. says, that this title was granted of the curtesy of King Henry I.
20. In Scotland there is this variation in the curtesy from that in England, that the wife must have been seized of the estate as heir, and not have acquired it by purchase, though it is admitted there is no good reason for the distinction. Bell’s Com. vol. i. 5th ed. 61.
21. Statute of Vermont, of 10thMarch, 1797, sec. 61.
22. Co. Litt. 29. a.
23. Perkins, sec. 457. 464. Co. Litt. 29. a. De Grey v. Richardson, 3 Atk. 469.
24. De Grey v. Richardson, 3 Atk. 469. Sterling v. Penlington, 7 Viner, 149. p 111.
25. Jackson v. Sellick, 8 Johns. Rep. 262. Clay v. White, 1 “Munf. 162. Green v. Liter, 8 Cranch, 249. Davis v. Mason, 1 Peters’ U. S. Rep. 503.
26. Jackson v. Johnson, 5 Cowen,74.
27. Bush v. Bradley, 4 Day, 298. Kline v. Beebe, 6 Conn. Rep. 494.
28. 4 Day, ub. supra.
29. Gilbert, on Uses, by Sugden, 48. 440.
30. Sweetapple v. Bindon, 2 Vern. 636. Watts v. Ball, 1 P. Wins. 108. Chaplin v. Chaplin, 3 Ibid. 229. Cashborne v. Scarfe, 1 Atk. 603. Cunningham v. Moody, 1 Ves. 174. Dodson v. Hay, 3 Bro. 404.
31. Hearle v. Greenbank, 1 Ties. 298. 3 Atk. 716. S. C.
32. 1 Atk. 607.
33. Pitt v. Jackson, 3 Bro. 51. Morgan v. Morgan, 5Madd. Reps. 248. Amer. ed.
34. Bennet v. Davis, 2 P. Wms. 316.
35. This is so stated in Chaplin v. Chaplin, as reported in 7 Viner, 156. pl. 23., and the same thing is declared by Lord Hardwicke, in a case which Lord Loughborough cited from his note book, in 2 Tomes. J. 433.
36. 8 Co. 34.
37. Buckworth v. Thirkell, 3 Bos. & Pull. 652. note.
38. Buckworth v. Thirkell, 3 Bos. & Pull. 652. note. Butler’s note 170. to Co. Litt. 241. a. Roper on Husband and Wife, vol. i. 36, 37. Preston on Abstracts of Titles, vol. iii. 384. Park on Dower, 172. 186. Mr. Butler, in speaking of limited fees, which by the grant are to continue only to a certain period, observes, that curtesy and dower will continue after the expiration of the period to which the fee was to continue. But where the fee was originally created by words importing an absolute fee, and by subsequent words, was made determinable upon some particular event, there the curtesy and dower cease with the estate to which the event is annexed. The case of Buckworth v. Thirkell, stands in the way of the doctrine of Mr. Butler, and Lord Mansfield decided that the case before him was one of a contingent and not of a conditional limitation. Lord Alvanley, in 3. Bos. & Pull. 654. cites the distinction of Mr. Butler, as worthy of attention, and Mr. Roper has varied it, and discussed it. Neither of them, as it would appear to me, have traced the lines of the distinction with satisfactory clearness and precision, or shown any sound principle on which it rests. The subject is replete with perplexed refinements, and it is involved too deep in mystery and technical subtleties, to be sufficiently intelligible for practical use. Here arises a proper case for the aid of the reformer. When any particular branch of the law has departed widely from clear and simple rules, or by the ‘use of artificial and redundant distinctions has become uncertain and almost incomprehensible, there is no effectual relief but from the potent hand of the lawgiver.
39. Preston on Abstracts of Title, vol. iii. 385.
40. Sidney v. Sidney, 3 P. Wins. 276.
41. Co. Litt. 251. a. b. 302. b. 2 Inst. 309.
42. Laws N.Y. sess. 10. ch. 50. sec. 6.
43. Laws N.Y. sess. 10. ch. 48. sec.
44. N.Y. Revised Statutes, vol. i. 739. sec. 143. 145.
45. Litt. sec. 36. Perkins, sec. 301. N.Y. Revised Statutes, vol. 1. 740. sec. 1. Park’s Treatise on the Law of Dower, 5.
46. Bracton, 92. a. Fleta, lib. 5. c.’23. sec. 2. Co. Litt. 30. b. In the customs of the ancient Germans recorded by Tacitus, De. nor. Gem. c. 18. dot em non azor marito, sod uzori maritus of ert. In this custom we probably have the origin of the right of dower, which was carried by the northern barbarians into their extensive conquests.; and when a permanent interest was acquired inland, the dower of the widow was extended and applied to real estate, from principle and affection; and by the influence of the same generosity, of sentiment which first applied it to chattels. Stuart’s View of Society, p. 29, 30. 223-227. Olaus Magnus records the same custom among the Goths; and Dr. Stuart shows it to have been incorporated into the laws of the Visigoths and Burgundians. Mr. Barrington observes, that the English would probably borrow such an institution from the Goths and Swedes, rather than from any other of the northern nations. Observ. upon the ancient Statutes, p. 9, 10. Among the Anglo-Saxons, the dower consisted of goods, and there were no footsteps of dower in lands until the Norman conquest. 2 Blacks. Com. 129. Spelman, Gloss. ad vocem, deduces dos from the French, douaire; and Sir Marlin Wright says, that dower was probably brought into England by the Normans, as a branch of their doctrine of fiefs or tenures. Wright on Tenures, 192. In the French law, tenancy by curtesy is called droit de viduite. Oeuvres d. D’, guesseau, tom. 4. 660.
47. Glan. lib. 6. o. 1.
48. Bracton, lib. 2. c. 39. sec. ‘. Fleta, lib. 5. c. 24. sec. 7.
49. C. 7.
50. Co. Litt. 31. a.
51. Co. Litt. 33. a. 7 Co. 42. Kenne’s case. Doct. & Stu. 22.
52. Co. Litt. 31. b. Kelly v. Harrison, 2. Johns. Cas. 29.
53. Buchanan v. Deshon, 1 Harr. cr Gill. 280.
54. Sutliff v. Forgey, 1 Cowen, 89. 81bid. 713. S. C.
55. N.Y. Revised Statutes, vol. i. 740. sec. 2.
56. Litt. sec. 45.
57. F. N. R. 150. k. Co. Litt. 31. b.
58. Bro. tit. Dower, pl. 75. Litt. sec. 448. 681. Co. Litt. 31. A..
59. Perkins, sec. 371, 372.
60. Bancroft v. White, 1 Caines’ Rep. 185. Embree v. Ellis, 2 Johns. Rep. 119.
61. Perkins, sec. 386, 367, ‘368, s69,370. Bro. tit. Dower, pl. 29.
62. Co. Litt. 32. a. D’Arcy v. Blake, 2 Sch. tjr Lef 387. Shoemaker v. Walker, 2 Serg. & Rawle 556.
63. Co. Litt. 31. b., and so declared in Nash r. Preston, Cro. Car. 190. and Sneyd v. Sneyd, 1 Atk. 442.
64. Holbrook v. Finney, 4 Mass. Rep. 566. Clarke v. Munroe, 14 Ibid. 551. Bogie v. Rutledge, 1 Bay, 312. Stow v. Tiflt, 15 Johns. Rep. 458.
65. Tabelee v. Tabelee, 1 Johns. Ch. Rep. 45. Swaine v. Perine, 5 Ibid. 482. Gibson v. Crehore, 5 Pick. 146. Russell v. Austin, 1 Page, 192. The N.Y. Revised Statutes, vol. i. 740. sec. 5 and 6. have incorporated in a statute provision these well settled principles in judicial jurisprudence.
66. Perkins, 333. 335. 338. Bro. tit. Dower, pl. 6. Finch’s Law, p. 12s. gates’ case, 1 Salk. 254. Mr. Park, in his copious and thorough Treatise on the Law of Dower, p. 61-73. discusses at large the embarrassing question, whether the interposition of a contingent estate of freehold, between a limitation to the husband for life, and a subsequent remainder to his heirs, will prevent dower. The prevailing language with the best property lawyers is, that a remainder to the heirs so circumstanced, is executed in possession in the tenant for life-sub modo, and that the estates are consolidated by a kind of temporary merger, until the happening of the contingency, and when it does happen, they divide and resume the character of several estates, so as to let in the estate originally limited upon that contingency. The anomalous notion of a remainder executed sub modo, involves insuperable difficulties, and it is not easy to perceive how dower can attach to an estate executed in the husband only sub modo, for dower at common law does not attach upon a mere possibility. If the wife has a title of dower upon such an estate, and the intervening, contingent remainder comes in esse after her title is consummated by the husband’s death, as by the birth of a posthumous child, will the remainder take effect subject to the title of dower, or will it defeat and overreach that title? The better opinion, according to Mr. Park, is, that the husband would be considered as seized of several estates, ap initio, and the dower must consequently be defeated. Cordal’s case, Cro. Eliz. 316. Boothby v. Vernon, 9 Nod.Rep.147. and Hooker v. Hooker, 2 Barn. K. B. 200. 232. are severely criticised in reference to this question. Mr. Fearne also speaks of estates executed sub modo, that is, to some purposes though not to all, as if an estate be granted to A. and B. for their lives, and after their deaths to the heirs of B., the estates in remainder and in possession are not so executed in possession as to sever the jointure, or entitle the wife of B. to dower. ‘There is no merger of the estate for life, and a joint seizin of the freehold is a, bar to dower. And yet these estates are so blended, or executed in the possession, as to make the inheritance not grantable distinct from the freehold. Fearne on Remainders, 5th ed. 35, 36. To enter further into this abstruse learning, would be of very little use, as such recondite points rarely occur.
67. Perkins, sec. 342. 345. 347. Co. Litt. 3231. a. Par231 an Dower112.4.
68. Stoughton v. Leigh, 1 Taunt. Rep. 402. Coates v. Cheever, 1 Cowen, 460.
69. Griffith’s Register. Swift’s Dig. vol. i. 85. Stewart v. Stewart, 5 Conn. Rep. 317. Winstead v. Winstead, 1 Hayw. 243. In Connecticut, and probably in those other states, the husband cannot by will deprive his wife of her dower, for the estate in dower is cast upon the wife before the devise attaches.
70. Conner v. Shepherd, 15Mass. Rep. 164. Johnson v. Perley, 2 H. Rep. 56. Griffith’s Register, tit. Maine.
71. Webb v. Townsend, 1 Pickering’s Rep. 21.
72. Reed v. Morrison, 12 Serg. & Rawle, 18.
73. Griffith’s Register, li. t. Frost v. Etheridge, 1 Badger 4 Der. 30.
74. Bro. tit. Dower pl. ii. Perkins, sec. 392.
75. Cro. Car. 191.
76. Lord Hardwicke, in Hinton v. Hinton, 2 Vesey, 631. Noel v. Jevon, 2 Freeman, 43.
77. 2. P. Wms. 700.
78. The rule in Chancery had been vacillating previous to that decision, though the weight of authority, and the language of the courts, were decidedly against the right to dower. Colt v. Colt, Reports in Chancery, vol, i. 134. Radnor v. Rotheram, Prec. in Chancery, 65. Bottomly v. Fairfax, ibid, 326. Ambrose v. Ambrose, l P. Wms. 321 were all opposed to Fletcher v. Robinson, cited in Prec. in Chancery, 250. and 2 P. Wms. 710.
79. Chaplin v. Chaplin, 3. P. Wms. 229. Godwin v. Winsmore, 2 Atk. 525. Sir Thomas Clarke, in Burges v. Wheate, 1 Blacks. Rep. 138. Dixon v. Saville, 1 Bro. 326. D’Arey v. Blake, 2 Sch.. Of Lef. 387.
80. Bird v. Gardner, 10 Mass. Rep. 364. Snow v. Stephens, 15 bid. 278. Fish v. Fish, 1 Conn. Rep. 559. Hitchcock v. Harrington, 6 Johns. Rep. ‘290. Collins v. Terry, 7 ibid. 278. Coles v. Coles, 15 ibid. 319. Titus v. Neilson, 5 Johns. Ch. Rep. 452. N.Y. Revised Statutes, vol. 1. 740. sec. 4. Montgomery v. Bruere, 2 Southard, 865. Reed v. Morrison, 12 Serg. & Rawle, 18. Heth v. Cocks, 1 Randolph, 344.
81. Tabele v. Tabele, 1 Johns. Ch. Rep. 45. Swaine v. Perine, 5 ibid. 482. Titus v. Neilson, ibid. 452. Peabody v. Patten, 2 Pick. Rep. 517. Gibson v. Crehore, 5 ibid. 146.
82. Jackson v. Dewitt, 6 Cowen, 316.
83. 2 Halsted, 392. 17Mass. Rep. 564.
84. Popkin v. Bumsted, 8Mass. Rep. 491. Bird v. Gardiner, 10 ibid. 364. Coates v. Cheever, 1 Cowen, 460. Jackson v. Dewitt, 6 ibid. 316.
85. Brown v. Gibbs, Prec. in Ch. 97. Carbone v. Scarfe, 1 Aik. 605
86. Shoemaker v. Walker, 2 Serg. & Rawle, 554. Reed v. Morrison, 12 ibid. 18. Statutes of Virginia, 1785 and 1792. Miller v. Beverly, 1 Hen. BfMunf. 368. Clairborne v. Henderson, 3 ibid. 322. Griffith’s Reg.
87. See Rowton v. Rowton.. 1 Hen, 3..Mjnf. 9.2
88. Swaine v. Perine. 5 john. Ch. Rep. 482 Gibson v. Crehore, 5 Pickering, 146
89. Palmes v. Danby, Prec. in Ch. 137.
90. Stewart v. Waters, 1 Caines’ Cas. in Error, 47. Jackson v. Willard, 4 Johns. Rep. 41. Huntington v. Smith, 4 Conn. Rep. 235. Eaton v Whiting, 3 Pick. Rep. 484. d Vol. i. 741. sec. 7.
91. Vol. i. 741. Sec.7
92. By the absolute estate, in the revised code, more was intended than the estate which is technically absolute at law on default of payment at the day. I presume the word absolute is here to be taken in the strongest sense. In Runyan v. Mersereau, 11 Johns. Rep. 534. it was held that the freehold was in the mortgagor before foreclosure or entry. If the morgagee enters without foreclosure, the freehold may then be shifted in contemplation of law; but still the mortgagee has not an absolute estate, so long as the equity of redemption hangs over that estate and qualifies it. According to the English law, the wife of the mortgagee would be entitled to her dower in such a case from the heir of the mortgagee, who died in possession, though the estate in dower would be defeasible, like her husband’s estate, by redemption, on the part of the mortgagor. The words of the new revised statutes, were probably intended to stand for an estate with the equity of redemption finally foreclosed and absolutely barred. Upon that construction the restriction has been carried beyond the English rule,and, I apprehend, beyond also the necessity or reason of the case.
93. Perkins, sec. 311, 312. 317.
94. Perkins, sec. 376. It was, however, re-enacted in totidern verbis in New York in 1787. Laws N.Y. sess. 10. ch. 4. sec. 4., and it is in substance adopted and enlarged by the N.Y. Revised Statutes, vol. i. 742. sec. 16, which declares, that “no judgment or decree confessed by or recovered against the husband; and no lathes, default, covin, or crime of the husband, shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.”
95. Litt. sec. 393. Co. Litt. 240, h. Berkshire v. Vanlore, Winch. 77.
96. Perkins, sec. 381.
97. Perkins, sec. 379, 380. Park on Dower, 148.
98. Bro. tit. Tenures, p1. 33. tit. Dower, p1. 86. Paine’s case, 8 Co. 34. Jenk. Cent. 1. case 6. p. 5.
99. Jenk. Cent. vb. sup. Preston on Abstracts of Title, vol, iii. 373. $teller’s note 170. to Co. Litt. 241, a.
100. The cases of Sammes v. Payne, 1 Leon. 167. f oldsb. 81. Flavill v. Ventrice, Viner’s Rbr. vol. ix. 217. F. pl. 1. Sumner v. Partridge, 2 Atk. 47. and Buckworth v. Thirkell, 3 Bos. & Pull. 652. n. are ably reviewed by Mr. Park; and the latter case, though decided by the K. B. in the time of Lord Mansfield, after two successive arguments, is strongly condemned as being repugnant to settled distinctions on this abstruse branch of the law.
101. Butler’s note 170. to Co. Litt. 241. a. Sugden on Powers, 333. Preston on Abstracts of Title, vol. iii. 372. Park on Dower, 168186.
102. Greene v. Greene, 1 Hammond’s Ohio Rep. 538. In that case the subject is ably discussed, and the whole volume is evidence of a very correct and enlightened administration of justice, in equity as well as in law.
103. N.Y. Revised Statutes, vol. i. 742. sec. 16.
104. 10 Co. 49. b. Lampet’s case, Plowd. 504. Eare v. Snow.
105. Goodell v. Bingham, 1 Bos. & Pull. 192.
106. Butler’s note 119. Co. Litt. 216. a., and note 330. to Co. Lit(.3?O. h. Gilbert on Uses. by Sugden, 321. note. Fearne on Remainders, vol. i. 437. note, 5th edit. Park on Dower, 85. 187, 188. Lord Eldon, in Maundrell v. Maundrell, 1o Vesey, 263. 265, 266. Heath. 1. in 3 Vesey, 657.
107. Butler’s note 330. to lib. 3. Co. Litt.
108. Park on Dower, p. 93-99. has given us the conflicting opinions of such distinguished and largely experienced conveyancing counsel as Mr. Marriott, Mr. Wilbraham, Mr. Booth, and Mr. Filmer, who flourished in the middle of the last century, and he adds as his own opinion, that, strictly speaking, a purchaser is entitled to the concurrence of the trustee in every case in which that trustee is sui juris, and can convey without the expense of a fine. or an order in Chancery.
109. Laws N.Y. sess. 10. ch. 4. sec. 7. N.Y. Revised Statutes, vol. i. 741. sec. S. The statute of 1787 barred the wife of dower who eloped and lived with an adulterer, unless her husband was subsequently reconciled to her. The new revised statutes have abridged this ancient bar, by confining it to cases of a dissolution of the marriage contract; or else making it to depend on conviction of adultery in a suit by the husband for a divorce. It is declared that “in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. (See vol. i. 741.) Upon this provision it may be observed, that in case of a divorce a vinculo, dower would cease of course, and no such statute provision was necessary; and if there should be no divorce, or the husband should die before he had time or the means to obtain it, the adulteress could sue for and recover her dower. It is difficult to know what is exactly meant here by the term misconduct of the wife. It is much too vague and general to be the ground of such a penal forfeiture. In a subsequent branch of the revised statutes, (see vol. ii. 146. sec. 48.) it is declared, that if the wife be convicted of adultery, in a suit for a divorce brought by the husband, she forfeits her right of dower. The word misconduct must then have some other meaning, and apply to some other offense than adultery. Marriages are to be dissolved by the chancellor, when made within the age of consent, or when a former husband or wife is living, or when one of the parties is an idiot or lunatic, or the consent of one of the parties was obtained by force or fraud, or causa impotentice. (N.Y. Revised Statutes, vol. ii. 142, 143, 144.) It may be very difficult to know how far the term misconduct applies to these several causes of divorce, so directly as to work a forfeiture of dower. But in fact there was no need of the provision; for, as the law always stood, if the dowress was not the wife at the death of the husband, her claim of dower fell to the ground. ‘The provision seems to be absolutely meanless, and it ought to be added, in justice to the revisers, that the bill, as originally reported by then, contained on this point the provision and the language of the old law. It would have been safer, and wiser, to have retained the plain, blunt style of the old law, and confined the loss of dower to a conviction of adultery, or else to have defined in precise terms the additional offense, if any, which was to destroy the dower.
110. Swift’s Digest, vol. i. 86. Dane’s Abr. vol. iv. 672. 676.
111. 2 Blacks. Com. 130.
112. N.Y. Revised Statutes, vol. ii. 145. sec. 45. Connecticut Statutes, 180. tit. Dower. Mass. Stat. 1785. c. 69.
113. Co. Litt. 36. b. Vernon’s rase, 4 Co. 1.
114. Sidney v. Sidney, 3 P. Wms.269. Blount v. Winter, cited in note to 3 Plowd. 277. The Master of the Rolls, in Seagrave v. Seagrave, 7 3 Vesey, 443.
115. Co. Litt. 36. b.
116. Lord Hardwicke, in Hervey v. Hervey, 1 Atk. 56e, 563. Jordan v. Savage, Bacon’s Abr. tit. Jointure, B. 5.
117. Drury v. Drury, 5 Bro. P. C. 570. 4 Bro. Ch. Rep. 506, note. See also Caruthers v. Caruthers, ibid. 500.
118. Laws of New York, sess. 10. ch. 4. per. P.
119. N.Y. Revised Statutes, vol. 1. 741. sec. 9, 10.
120. The provisions of the statute of 27. Hen. VIII, have always been in force in Massachusetts. Hastings v. Dickinson, 7Mass. Rep. 153. And they have been essentially re-enacted in Connecticut, though there the jointure may consist of personal as well as real estate. Swift’s Dig. vol. i 86. So, in Virginia, if the widow be evicted of her jointure, she has still a right to claim her dower. Ambler v. Weston, 4 Hen. 4 JITunf. 23. The lawof jointure under the statute of 27 Hen. VIII. exists in Pennsylvania and South Carolina, (2 Const. Rep. by Treadway, 747. 1 Dallas, 417.) and doubtless it very generally prevails throughout the Union. In Pennsylvania it is left as a doubtful question, whether settlement of personal estate would be sufficient to bar the dower, and be held equivalent to a jointure. The case of Drury v. Drury, holding that an infant’s dower may be barred by jointure, seems, however, to be assumed as the settled law. Shaw v. Boyd, 5 Serg. & Rawle, 309. But the N.Y. Revised Statutes would appear to have altogether omitted, for I do not perceive in them the provision in the former law, and in the statute of 27 Hen. Viii., allowing to the wife a compensation by dower in other lands on eviction from the lands placed in jointure.
121. Wake v. Wake, 3 Bro. 255. 1 Vesey, jun. 335. S. C. Duncan v. Duncan, 2 Yeates’ Rep. 302.
122. Co. Litt. 36. b. Harg. note 224. to lib. 1. Co. Litt. Lawrence v. Lawrence, 2 Vern. Rep. 365. 1 Dallas’ Rep. 117. McKean, Ch. J. Larrabee v. Van Alstyne, 1 Johns. Rep. 307.
123. Lord Alvanley, in French v. Dacres, 2 Vesey, jun. 578. Lord Redesdale, in Birmingham v. Kirwan, 2 Sch. 4 Lef. 451. Larrabee v. Van Alstyne, 1 Johns. Rep. 307. Van Orden v. Van Orden, 10 ibid. 30. Jackson v. Churchill, 7 Cowen’s Rep. 287. Pickett v. Peay, 2 Const. Rep. S. C. 746. See also, Butler’s and Baker’s case, 3 Leon. 272, arg. Gosling v. Warburton, Cro. Eliz. 128:
124. French v. Davies, 2 Vesey’s Rep. 572. Strahan v. Sutton, 3 Ves. Rep. 249. Kennedy v. Nedrow, 1 Dallas’ Rep. 415. Adsit v. Adsit, 2 Johns. Ch. Rep. 448. Jackson v. Churchill, 7 Cowen’s Rep. 287. Pickott v. Peay, 2 Const. Rep. S. C. 746. Evans v. Webb, 1 Yeates’ Rep. 424. Perkins v. Little, 1 Greenleaf, 150.
125. Vol. i. 741. sec. 11, 12, 15, 14.
126. The statute of Virginia of 1727, gave the widow nine months, and the statute of Vermont, in 1799, sixty days, to make her election; and if she made none, she was held exclusively to her dower at common law.
127. N.Y. Revised Statutes, vol. i. 742. sec. 15.
128. Co. Litt. 31. b.
129. N.Y. Revised Statutes, vol. i. 740. sec. 3.
130. 3 Mason’s Rep. 351.
131. Catlin v. Ware, 9 JVtass. Rep. 218. Lufkin v. Curtis, 13 Ibid. 223. Powell v. M. and B. Man. Company, 3Mason’s Rep. 347.
132. N.Y. Revised Statutes, vol. i. 758. sec. 11. The law commissioners in England, appointed by the crown in 1828, to inquire into the law of England respecting real property, for the purpose of ascertaining what improvements could be made therein, reported, in 1829, several very essential and fundamental alterations in the shape of propositions. If adopted by Parliament, they would remove a great deal of existing inconvenience, injustice, and absurdity, and assimilate the English law of real property, much more than it is at present, with the law of property in the United States.
Under the head of curtesy, they propose, (1.) That curtesy shall attach upon all hereditaments whereof the husband and wife were seized in law during the coverture, equally as if such seizin had been obtained in fact. (2.) Upon all hereditaments to which the husband and wife had a right in possession during coverture, although seizin thereof may not have been obtained: (3.) The right shall attach, notwithstanding there may have been no issue of the marriage, upon all hereditaments or property to which the same would have attached if issue had been born. (4.) If the deceased wife left issue living by a former husband entitled to her estate as her heir at law, the curtesy shall attach only upon an undivided moiety of such estate.
Under the head of dower, they propose, (1.) That dower shall attach at law upon hereditaments to which the husband, at his death, had a right, though e may not have had seizin thereof. (2.) The wife shall be entitled to dower in equity, out of all such hereditaments which belonged to the husband at his death, and, from their nature, subject to dower, as would, by the rules of equity, be subject to the husband’s curtesy, had the same belonged to her, and the husband had survived her. (3.) The husband may, by conveyance or devise, bar his wife’s dower, in all cases in which e might, by conveyance or devise, bar his heirs or issue in tail; and the widow’s right of dower is likewise made subject to all charges and encumbrances made by the husband, and to his debts and contracts, in all cases in which his heir or devisee would be subject.
133. Co. Litt. 124. b.
134. Ch. 7.
135. N.Y. Revised Statutes, vol. i. 742. sec. 17.
136. Litt. sec. 43. Co. Litt. 32. b. 37. a. Doe v. Nutt, 2 Carr 4 Payne, 430. Jackson v. O’Donaghy, 7 Johns. Rep. 247. Jackson v. Aspell, 20 ibid. 411. Jackson v. Vanderheyden, 17 ibid. 167.Chapman v. Armstead, 4Munf 382. Moore v. Gilliam, 5 ibid. 346. Johnson v. Morse, 2 N. H. Rep. 49. Sheaffer v. O’Neil, 9 Nags. Rep. 13.
137. Den v. Dodd, Halsted, 367.
138. 3 Halsted, 129.
139. Stedman v. Fortune, 5 Conn. Rep. 462. Griffith’s Reg. tit. Kentucky.
140. Branson v. Yancy, 1 Bad. & Dev. Eq. Cas. 12. If it be the case, that in North Carolina the quarantine is enlarged for a year, it is a revival of the ancient law of England, and this enlarged quarantine, Lord Coke says, was certainly the law of England before the conquest. Co. Litt. 32. b.
141. Co. Litt. 32. b. 2 Inst. 2″.
142. P. 307.
143. Litt. sec. 36. In the state of Alabama, the whole of the husband’s mansion house is to be included in the one third, unless manifestly unjust. Griffith’s Reg.
144. Co. Litt. 144. b. Popham, 87.
145. Co. Litt. 32. a. Perkins, sec. 342. 415. Park on Dower, 112. 252.
146. Stoughton v. Leigh, 1 Taunt. Rep. 409.
147. 5 Bos. & Pull. 33.
148. Litt. sec.44. Co. Litt. 32. b.
149. Co. Litt. 31. a.
150. Decided in the Supreme Court of New Hampshire in 1808, 1 Greenleaf, 54. note.
151. Judge Reeve puts the following case for illustration. If A. sells to B., and B. to C., and C. to D., and D. to E., and the husbands all die, leaving their respective wives living, the widow of A. is entitled to be endowed of one third of the estate, the widow of B. is entitled to be endowed of one third of what remains, after deducting the dower of the first wife, the widow of C. of one third of what remains, after deducting the dower of the wives of A. and B.; so on to the wife of D. And if we suppose the estate to consist of nine acres, the wife of A. would be endowed of three acres, the wife of B. of two acres, the wife of C. of one acre and a third, and the wife of D. of one third of the remaining two acres, and two thirds. Reeve’s Domestic Rela-, tion, p. 58.
152. Perkins, sec. 406.
153. Co. Litt. 32. a. Harg% note, 192, ibid.
154. Co. Litt. 32, b.
155. Co. Litt. 32. b
156. Fitz..Rbr. tit. Voucher, 288. and tit. Dower, 192. cites 17 Hen. III. Perkins, sec. 328.
157. Sir Matthew Hale’s MSS. cited in Harg. Co. Litt. n. 193. to lib. 1. Co. Litt.
158. Humphrey v. Phinney, 2 Johns. Rep. 484. Catlin v. Ware, 9Mass. Rep. 218. Powell v. M. & B. Man. Co. 3 Mason’s Rep. 347. Thompson v. Morrow, 5 Serg. & Rawle, 289. Hale v. James, 6 Johns. Ch. Rep. 258. Russell v. Gee, 2 Const. Rep. S. C. 994.
159. Hale v. James, 6 Johns. Ch. Rep. 258. Powell v. M. & B. Man. Co. 3Mason’s Rep. 450.
160. Story, J. 3 Mason’s Rep. 368.
161. 3 Mass. Rep.. 544.
162. 5 Serg. & Rawle, 289.
163. 3 Mason’s Rep. 375.
164. 11 Johns. Rep. X10.
165. 13 Johns. Rep. 179.
166. Laws N.Y. sess. 29. Ch. 168.
167. 2 Johns. Rep. 484.
168. In the case of Powell v. M. & B. Man. Co. 3 Mason’s Rep. 573. it was suggested, that in Hale v. James, 6 Johns.Ch.Rep. 258, the Chancellor adhered to the rule that the value of the land at the time of alienation, was to be taken and acted upon as a clear rule of the common law, and that the common law authorities do not warrant any such doctrine. I am rather of the opinion that they do warrant the doctrine to the extent the Chancellor meant to go, viz. that the widow was not to be benefitted by improvements made by the alienee. That position does not seem to be denied, and in Hale v. James, as well as in Humphrey v. Phinney, nothing else was decided, for nothing else was before the court. In the former case, the Chancellor did not mean to give any opinion on the distinction between the increased value, arising from the acts of the purchaser and from collateral causes, and so he expressly declared.
169. Vol. i. 742. sec. 19,!20,:1, to-, 28:
170. Co. Litt. 35. a.
171. Perking, sec. 419. Co. Litt. 384. b.
172. 9 Co. 176
173. N.Y. Revised Statutes, vol. i. 793. sec. 23.
174. Davenport v. Wright, Dy. 224. a. Sheppard’, Touch. by Preston, Col. i. 28.32. Park on Dower, 311.
175. 1 Tre!. Con. Rep. S. C. 112.
176. 5 Dens. Ch. Rep. 555.
177. Oliver v. Richardson, 9 Vesey, 222. See also, Swaine v. Perine,5 John#. Ch. Rep. 482.
178. Vol. i. 742. sec. 18.
179. In the report of the English real property commissioners is 1829, it Was proposed, that no suit for dower should be brought unless, within twenty years next after the death of the husband, and that an account of the rents and profits of the dowable land. should be limited to six years next before the commencement of the suit. This is the rule precisely in the N.Y. Revised Statutes, (see supra,) and in vol. ii. 303. ‘343. the writ of dower, as well as all other real actiowe, is abolished, and the action of ejectment substituted and retrained, after dismissing all the fictitious parts of it. The real actions are still retained in several of the United States. In Massachusetts is particular, the writ of right, and the possessory real actions, are not ply preserved, but they are in active and familiar use in all their varied forms and technical distinctions, after having become simplified, and rendered free from every troublesome encumbrance that perplexed the ancient process and pleadings. Under the free, liberal, and plastic genius of that republic, the pleadings remain admirable specimens of simplicity, brevity and precision, and display their clear, strong, and accustomed logic. It is a singular fact, a sort of anomaly in the history of jurisprudence, that the curious inventions, and subtle, profound, but solid distinctions which guarded and cherished the rights and remedies attached to real property in the feudal ages, should have been transported, and remain rooted, in a soil that never felt the fabric of the feudal system; whilst, on the other hand, the English parliamentary commissioners, in their recent report, have proposed a sweeping abolition of the whole formidable catalogue of writs of right, writs of entry, writs of assize, and all the other writs in real action, with the single exception of writs of dower, and quare impedit. This we should hardly have expected in a stable and proud monarchy, heretofore acting upon the great text authority of Lord Bacon, that “it were good if men, in their innovations, would follow the example of time itself, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived.”
180. Goodenough v. Goodenough, Dickens, 795. Curtis v. Curtis, 2 Bro. 620. Mundy v. Mundy, 4 Bro. 295. 2 Vesey, jun. 122. S. C.
181. Swaine v. Perine, 5 Johns. Ch. Rep. 482. Greene v. Greene, 1 Hammond’s Rep. 535. Dr. Tucker, note to 2 Blacks. Com. 135.. n. 19.
182. Harrison v. Eldridge, 2 Halsted, 401, 402.
183. N.Y. Revised Statutes, vol. ii. 488-492. Coates v. Cheever. 1 Cowen,46d.
184. Perkins, sec. 521. Dy. 316. pl. 2. The Statute of Merton, 20 Hen. III. had this provision, and it has been frequently re-enacted in this state, and is included in the new revision of our statute laws N.Y. Revised Statutes, vol. i. 743. sec. 25.
185. Co. Litt. 41. b.
186. Co. Litt. 93. a. b.
187. Oland’s case, 5 Co. t.16. Debow v. Titus, a Halsted, t5&.
188. Co. Litt. 55. b.
189. See vol. iii. 376.
190. Bevans v. Briscoe, 4 B arr. 6s Johns. 139.
191. Lord Hardwicke, in Casborne v. Searfe, 1 At/c. 606. Revel v. Watkinson, 1 Vesey, 93. and in Amesbury v. Brown, 1 Vesey, 480. Tracy v. Hereford, 2 Bro. 128. Penhyrn v. Hughes, 5 Vesey, 99.
192. Lord Eldon, in Earl of Buckinghamshire v. Hobart, 3 Swanst. 199
193. Roe v. P gson, 2 Arddd. Rep. 581. Amer. ed.
194. Rowel v. Walley, 1 Rep. in Ch. 219.
195. 4 Vesey, 24.
196. Lord Eldon, in White v. White, 9 Vesey, 560. Allan v. Back-house, 2 Ves. & Beam. 65.
197. 5 Vesey, 99.
198. Vide supra.
199. Neither Mr. Hargrave nor Mr. Park were able to find any authority declaring that the dowress was chargeable with permissive waste, though both of them were of opinion that she was answerable. Harb. 377, to lib. 1. Co. Litt. Park on Dower, 357.
200. Co. Litt. 53. a. b. Butler’s note 122. to lib. 3. Co. Litt. Danc” Abr. vol. 3. tit. waste. passim. 2 Blacks. Com. 281.
201. Jackson v. Brownson, 7 Johns. Rep. 227.
202. Hastings v. Crunckleton, 3 Yates Rep. 261.
203. Conner v. Shepherd, 15Mass. Rep. 164.
204. Findly v. Smith, 6 Munf. 134. Crouch v. Puryear. 1 Rand’s Rep.253.
205. Parkins v. Coxe, 2 Hayw. 339.,
206. Ibid. 110.
207. Co. Litt. 54. a. 2 Inst. 145. 303.
208. White v. Wagner, 4 Harr. 8r Johns. 373.
209. In the case of the Governors of Harrow School v. Alderton, 2 Bos. & Pull. 86. we have the ancient action of waste on the statute of Gloucester, in which the plaintiff is entitled to recover the place wasted and treble damages
210. Co. Litt. 53. b. 54. a.
211. Perrot v. Perrot, 3.1tk. 94. Aston v. Aston, 1 Vesey, 264. Vane v. Barnard, 2 Vern. 738. Lord Thurlow, in Tracy v. Hereford, 2 Bro. 138. Kane v. Vanderburgh, 1 Johns. Ch. Rep. 11. The N.Y. Revised Statutes, vol. i. 760. sec. 8. have incorporated the doctrine of these chancery decisions, so far as to give to the person seized in remainder or reversion, an action of waste for an injury to the inheritance, notwithstanding any intervening estate for life or years. The statute remedy was first introduced, and smothered, amidst the multiplied temporary provisions of the Supply Bill in 1811, and I presume it was intended to meet the difficulty of some special case. Laws N.Y. sess. 34. ch..246. sec. 47. The recovery in such a case must be without prejudice to the intervening estate for life or years; and the courts will still have to supply by construction the want of specific provision in the statute, as to the disposition of the place wasted and the damages. In Massachusetts, by statute, the person having the next intermediate estate of freehold, may also bring an action of waste against a dowress. Jackson on Pleadings in Real Actions, p. 329,
212. Pillsworth v. Hopton, 6 Vesey, 51. Storm v. Mann, 4 Johns Ch.Rep. 21
213. Gibson v. Wells, 4 Bos. & Pull. 290. Herne v. Bembow, 4 Taunt. Rep. 764.
214. See the just and able criticism by counsel on those decisions, in 4 Harr. Bf Johns. 378, 379. 388, 389, and the dictum of Johnson, J. ibid. 393.
215. 6 Edw. I. c. 5.
216. 2 Inst. 299.
217. 5 Co. 13.
218. Reeve’s Hist. of the English Law, vol. ii. 73. 148. By the common law, says Lord Coke, 2 Inst. 300. the punishment for waste against the guardian, was the forfeiture of his trust, and damages to the value of the waste. So the tenant in dower yielded the like damages, and had a keeper set over her to guard against future waste.
219. Laws N.Y. 1787. sess. 10. ch. 6. Act of Virginia, 1794. ch. 139.
220. Cameron & Norw. N: C. Rep. 26. Ch. J. Parsons, in 4Mass. Rep. 563. Johnson, J. in 4 Harr. 8s Johns. 391. Mr. Dane, in his General Abridgment and Digest of American Law, vol. 3. ch. 78. art. 11. sec. 2.-art. 13. sec. 3, 4, 5.-art. 14. sec. 2. says, that the statute of Gloucester was adopted in Massachusetts as part of their common law as to the remedial part only, but not as to the forfeiture of the place wasted and treble damages. The statute of 1783 gave the forfeiture of the place wasted, and single damages against the tenant in dower. On the other hand, Judge Jackson, in his Treatise on the Pleadings and Practice in Real Actions, p. 340. follows the opinion of Ch. J. Parsons, and considers the common law of Massachusetts. to be, that the plaintiff will generally, in the action of waste, recover the place wasted and treble damages. The weight of authority is on that side; but while I leave this point as I find it, resting on these conflicting opinions, I take this occasion to say, that I think it must somewhat startle and surprise the learned sergeants at Westminster Hall, if they should perchance look into the above treatise of Judge Jackson, or into the work of Professor Stearns on the Law and Practice of Real Actions, to find American lawyers much more accurate and familiar, than, judging from some of the late reports, they themselves appear to be, with the learning of the Year Books, Fitzherbert, Rastel, and Coke, on the doctrines and pleadings in real actions. Until the late work of Mr. Roscoe on actions relating to real property, and which was subsequent to that of Professor Stearns, and contains great legal learning, there was no modern work in England on real actions to be compared with those I have mentioned. Those abstruse subjects are digested and handled by Judge Jackson with a research, judgment, precision, and perspicuity, that reflect luster on the profession in this country. I have recently been informed, that the Supreme Court of Massachusetts have decided the question of the forfeiture in waste, in accordance with the opinions which Ch. J. Parsons and Judge Jackson had previously expressed.
221. By the New York Revised Statutes, vol. ii. 334, 335. 343. the writ of waste, as a real action, is abolished, but an action of waste is substituted, in which the first process by summons is given, and the judgment to be rendered is, that the plaintiff recover the place wasted, and treble damages.
222. Lord Coke says, that burning the house by negligence or mischance is waste; and Lord Hardwicke speaks generally, that the destruction of the house by, fire is waste, and the tenant must rebuild. Co. Litt. 53. b. 1 Vesey, 462.
223. Harg. note 3’77. to lib. 1. Co. Litt.
224. 4 Harr. 8r Johns. 381-385.
225. Nihil de jure facere potest quis quod vertat ad exhceredationem Do vnini sui-si super hoc convictus fuerit fcedum de jure amittet. Glanville, lib. 9. ch. 1. Litt. sec. 415. 2 Blacks. Com. 274
226. Co. Litt. 251. b. 252. a. 356. a. 2 Inst. 309. Statute of Gloucester, 6 Edw. I. c. 7. Preston on Abstracts of Titles, vol. i. 352-356. In Sir William Pelham’s case, 1 Co. 14. b. it was adjudged, that if a tenant for life conveyed in fee, by bargain and sale, and then suffered a common recovery, he forfeited his life estate; but in Smith v. Clyfford, 1 Term Rep. 738. it was held, that the estate of a tenant for life was not forfeited by suffering a recovery. Mr. Preston thinks the elder case the better decision and authority; (1 Preston on Convey. 202) but Mr. Ram, in his Outline of the Law of Tenure and Tenancy, p. 125-140. has discussed this point, and examined those authorities, with much ability, and he holds the latter decision to be sound, on the ground, that the recovery, being absolutely void, was harmless. We, in this country, have very little concern with such questions, but this instance strikingly illustrates the matchless character of the English jurisprudence for stability, and the spirit which sustains it. Here were two cases, at the distance of two centuries apart, on an abstruse and technical point of hard law, and the attention of two learned lawyers is immediately attracted by the seemingly apparent contrariety between them. The one justifies the latter case by showing that it went on new ground furnished by the statute of 14 Eli,:., subsequent to the first case; whereas the other, not being able to reconcile the cases on principle, condemns the latter decision with unceremonious and blunt severity.
227. 2 Inst. 309.
228. N. Y Revised Statutes, vol. i. 739. sec. 143. 145. McKee v. Pfout, 3 Dallas, 486.
229. Co. Litt. 229. a. Gilbert on Tenntre, Tit. discontinuance, 1 t232′.
230. Doe v. Danvers, 7 East’s Rep. 321. Wells v. Prince, 9Mars. Rep. 508, Jackson v. Mancius, 2 Wendell, 357.