Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Freeholds, Not of Inheritance
We are next to discourse of such estates of freehold, as are not of inheritance, but for life only. And, of these estates for life, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law.1 We will consider them both in their order.
I. Estates for life, expressly created by deed or grant, (which alone are properly conventional) are where a lease is made of lands or tenements to a man, to hold for more lives than one: in any of which cases he is styled tenant for life; only, when he holds the estate by the life of another, he is usually called tenant pur auter vie2 . These estates for life are, like inheritances, of a feudal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen3) was not in its original hereditary. They are given or conferred by the same feudal rites and solemnities, the same investiture or livery of seizin, as fees themselves are; and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on.
Estates for life may be created, not only by the express word before-mentioned, but also by a general grant, without defining or limiting any specific estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for life.4 For though, as there are no words of inheritance, or heirs, mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of the grantee;5 in case the grantor has authority to make such a grant: for an estate for a man’s own life is more beneficial and of a higher nature than for any other life; and the rule of law is, that all grants are to be taken most strongly against the grantor,6 unless in the case of the king.
Such estates for life will, generally speaking, endure as long as the life for which they are granted: but there are some estates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone.7 Yet, while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death; as if he enters into a monastery, whereby he is dead in law:8 for which reason in conveyances the grant is usually made “for the “term of a man’s natural life;” which can only determine by his natural death.9
The incidents to an estate for life, are principally the following; which are applicable not only to that species of tenants for life, which are expressly created by deed; but also to those, which are created by act and operation of law.
1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers10 or botes.11 For he has a right to the full enjoyment and use of the land, and all its profits, during his estate therein. But he is not permitted to cut down timber or do other waste upon the premises:12 for the destruction of such things, as are not the temporary profits of the tenement, is not necessary for the tenant’s complete enjoyment of his estate; but tends to the permanent and lasting loss of the person entitled to the inheritance.
2.Tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such determination is contingent and uncertain.13 Therefore if a tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop: for the estate was determined by the act of God; and it is a maxim in the law, that actus Dei nemini facit injuriam. The representatives therefore of the tenant for life shall have the emblements, to compensate for the labor and expense of tilling, manuring, and sowing, the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it. wherefore, by the feudal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but, if he died between the beginning of March and the end of August, the heirs of the tenant received the whole.14 From hence our law of emblements seems to have been derived, but with very considerable improvements. So it is also, if a man be tenant for the life of another, and cestuy que vie, or he on whose life the land is held, dies after the corn sown, the tenant pur auter vie shall have the emblements. The same is also the rule, if a life-estate be determined by the act of law. Therefore, if a lease be made to husband and wife during coverture, (which gives them a determinable estate for life) and the husband sows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the act of law.15 But if an estate for life be determined by the tenant’s own act, (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry) in these, and similar cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements.16 The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit: but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expense and labor of the tenant, but are either the permanent, or natural, profit of the earth.17 For even when a man plants a tree, he cannot be perfumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. 11.For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.
3. A third incident to estates for life relates to the under-tenants or lessees. For they have the same, nay greater indulgences, than their lessors, the original tenants for life. the same; for the law of estovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place:18 and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee who is a third person. as in the case of a woman who holds durante viduitate; her taking husband is her own act, and therefore deprives her of the emblements: but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent her.19 The lessees of tenants for life had also at the common law another most unreasonable advantage; for, at the death of their lessors the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent.20 To remedy which it is now enacted,21 that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the lessee a ratable proportion of rent, from the last day of payment to the death of such lessor.
II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens, where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct; in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As, where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue;22 in this case the man has an estate-tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that would not have distinguished him from others; and besides he has no longer an estate of inheritance, or fee,23 for he can have no heirs, capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone.
This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them.24 A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old.25
This estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as, not to be punishable for waste, etc:26 or, he is tenant in tail, with many of the restrictions of a tenant for life; as, to forfeit his estate if he alienes it in fee-simple:27 whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner; who is not concerned in interest, till all possibility of issue be extinct. But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life; which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature.
III. Tenant by the curtesy of England, is where a man marries a woman seized of lands or tenements in fee-simple or fee-tail; that is, of any estate of inheritance; and has by her issue, born alive, which was capable of inheriting her estate. In this case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England.28
This estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it is said in the mirrour29 to have been introduced by king Henry the first: but it appears also to have been the established law of Scotland, wherein it was called curialitas:30 so that probably our word curtesy was understood to signify rather an attendance upon the lord’s court or curtis, (that is, being his vassal or tenant) than to denote any peculiar favor belonging to this island. And therefore it is laid down31 that, by having issue, the husband shall be entitled to do homage to the lord, for the wife’s lands, alone. It is likewise used in Ireland, by virtue of an ordinance of king Henry III.32 It also appears33 to have obtained in Normandy; and was likewise used among the ancient Almains or Germans.34 And yet it is not generally apprehended to have been a consequence of feudal tenure,35 though I think some substantial feudal reasons may be given for its introduction. For, if a woman seized of lands has issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands in order to maintain it: and therefore the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee, during the life of such tenant.36 As soon therefore as any child was born, the father began to have a permanent interest in the lands, he became one of the pares curtis , and was called tenant by the curtesy initiate; and this estate being once vested in him by the birth of the child, was not liable to be determined by the subsequent death or coming of age of the infant.
There are four requisites necessary to make a tenancy by the curtesy; marriage, seizin of the wife, issue, and death of the wife.37 1. The marriage must be canonical, and legal. 2. The seizin of the wife must be an actual seizin, or possession of the lands; not a bare right to possess, which is a seizin in law, but an actual possession, which is a seizin in deed. And therefore a man shall not be tenant by the curtesy of a remainder or reversion. But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seizin of the wife; as in case of an advowson, where the church has not become void in the life time of the wife, which a man may hold by the curtesy, because it is impossible to have had actual seizin of it; and impotentia excusat legem.38 If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she herself has any title: and since she could never be rightfully seized of these lands, and the husband’s title depends entirely upon her seizin, the husband can have no title as tenant by the curtesy.39 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of its being born alive; but it is not the only evidence.40 The issue also must be born during the life of the mother; for, if the mother dies in labor, and the Caesarean operation is performed, the husband in this case shall not be tenant by the curtesy: because, at the instant of the mother’s death, he was clearly not entitled, as having had no issue born, but the land descended to the child, while he was yet in his mother’s womb; and the estate, being once so vested, shall not afterwards be taken from him.41 In gavelkind lands, a husband may be tenant by the curtesy without having any issue.42 Therefore if a woman be tenant in tail male, and has only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male.43 And this seems to be the true reason, why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seized: because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the ancestor of any land, whereof the ancestor was not actually seized; and therefore, as the husband has never begotten any issue that curtesy.44 And hence we may observe, with how much nicety and consideration the old rules of law were framed; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture: for, whether it were born before or after the wife’s seizin of the lands, whether it be living or dead at the time of the seizin, or at the time of the wife’s decease, the husband shall be tenant by the curtesy.45 The husband by the birth of the child becomes (as was before observed) tenant by the curtesy initiate,46 and may do many acts to charge the lands; but his estate is not consummate till the death of the wife; which is the fourth and last requisite to make a complete tenant by the curtesy.47
IV. Tenant in dower is where the husband of a woman is seized of an estate of inheritance, and dies; in this case, the wife shall have the third part of all the lands and tenements whereof he was seized during the coverture, to hold to herself for the term of her natural life.48
Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos; which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance: nor indeed is there any thing in general more different, than the regulation of landed property according to the English, and Roman laws. Dower out of lands seems also to have been unknown in the early part of our Saxon constitution; for, in the laws of Edmond,49 the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands, with a proviso that she remained chase and unmarried;50 as is usual also in copyhold dowers, or free bench. Yet some51 have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feudal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triens, tertia,52 and dotalitium) by the emperor Frederick the second;53 who was contemporary with our king Henry III. It is possible therefore that it might be with us the relic of a Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals.54 However this be, the reason, which our law gives for adopting it, is a very plain and a sensible one; for the sustenance of the wife, and the nurture and education of the younger children.55
In treating of this estate, let us, first, consider, who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and, fourthly, how dower may be barred or prevented.
1. Who may be endowed. She must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed; for ubi nullum matrimonium, ibi nulla dos.56 But a divorce a mensa et thoro only does not destroy the dower;57 no, not even for adultery itself, by the common law.58 Yet now by the statute Westm.259 if a woman elopes from her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her. It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy:60 but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. By the ancient law the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde,61 that, if the love of a man’s own life cannot restrain him from such atrocious acts, the love of his wife and children may: though Britton62 gives it another turn; viz. that it is presumed the wife was privy to her husband’s crime. However, the statute I Edw. VI. c. 12. abated the rigor of the common law in this particular, and allowed the wife her dower. But a subsequent statute63 revived this severity against the widows of traitors, who are now barred of their dower, but not the widows of felons. An alien also cannot be endowed, unless she be queen consort; for no alien is capable of holding lands.64 The wife must be above nine years old at her husband’s death, otherwise she shall not be endowed:65 though in Bracton’s time the age was indefinite, and dower was then only due, “si uxor possit dotem promereri, et virum sustinere“.66
2. We are next to inquire, of what a wife may be endowed. And she is now by law entitled to be endowed of all lands and tenements, of which her husband was seized in fee-simple or fee-tail at any time during the coverture; and of which any issue, which she might have had, might by possibility have been heir67Therefore if a man, seized in fee-simple, has a son by his first wife, and after marries a second wife, she shall be endowed of his lands; for her issue might by possibility have been heir, on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body begotten on Jane his wife; though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed; for no issue, that she could have, could by any possibility inherit them.68 A seizin in law of the husband will be as effectual as a seizin in deed, in order to render the wife dowable; for it is not in the wife’s power to bring the husband’s title to an actual seizin, as it is in the husband’s power to do with regard to the wife’s lands: which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually seized in deed.69 The seizin of the husband, for a transitory instant only, when the same act which gives him the estate conveys it also out of him again, (as where by a fine land is granted to a man, and he immediately renders it back by the same fine) such a seizin will not entitle the wife to dower:70 for the land was merely in transitu, and never rested in the husband. But, if the land abides in him for a single moment, it seems that the wife shall be endowed thereof.71 And, in short, a widow may be endowed of all her husband’s lands, tenements, and hereditaments, corporeal or incorporeal, under the restrictions before-mentioned; unless there be some special reason to the contrary. Thus, a woman shall not be endowed of a castle, built for defense of the realm:72 nor of a common without stint; for, as the heir would then have one portion of this common, and the widow another, and both without stint; the common would be doubly stocked.73 Copyhold estates also are not liable to dower, being only estates at the lord’s will; unless by the special custom of the manor, in which case it is usually called the widow’s free-bench.74 But, where dower is allowable, it matters not, though the husband aliene the lands during the coverture; for he alienes them liable to dower.75
3. Next. As to the manner in which a woman is to be endowed. There are now subsisting four species of dower; the fifth, mentioned by Littleton,76 de la plus belle, having been abolished together with the military tenures, of which it was a consequence. 1. Dower by the common law; or that which is before described. 2. Dower by particular custom;77 as that the wife shall have half the husband’s lands, or in some places the whole, and in some only a quarter. 3. Dower ad ostium ecclesiae:78 which is where tenant in fee-simple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (Sir Edward Coke in his translation adds) troth plighted between them, does endow his wife with the whole, or such quantity as he shall please, of his lands; at the same time specifying and ascertaining the same: on which the wife, after her husband’s death, may enter without farther ceremony. 4. Dower ex assensu patris;79 which is only a species of dower ad ostium ecclesiae, made when the husband’s father is alive, and the son by his consent, expressly given, endows his wife with parcel of his father’s lands. In either of these cases, they must (to prevent frauds) be made80 in facie ecclesiae et ad ostium ecclesiae; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuere conjugia.
It is curious to observe the several revolutions which the doctrine of dower has undergone, since its introduction into England. It seems first to have been of the nature of the dower in gavelkind, before-mentioned; viz. a moiety of the husband’s lands, but forfeitable by incontinency or a second marriage. By the famous charter of Henry I, this condition, of widowhood and chastity, was only required in case the husband left any issue:81 and afterwards we hear no more of it. Under Henry the second, according to Glanvil,82 the dower ad ostium ecclesiae was the most usual species of dower; and here, as well as in Normandy,83 it was binding upon the wife, if by her consented to at the time of marriage. Neither, in those days of feudal rigor, was the husband allowed to endow her ad ostium ecclesiae with more than the third part of the lands whereof he then was seized, though he might endow her with less; lest by such liberal endowments the lord should be defrauded of his wardships and other feudal profits.84 But if no specific donation was made at the church porch, then she was endowed by the common law of the third part (which was called her dos rationabilis) of such lands and tenements, as the husband was seized of at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquisitions:85 and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower86 in lands which he afterwards acquired.87 In king John’s Magna Carta, and the first charter of Henry III.,88 no mention is made of any alteration of the common law, in respect of the lands subject to dower: but in those of 1217, and 1224, it is particularly provided, that a widow shall be entitled for her dower to the third part of all such lands as the husband had held in his life time:89 yet, in case of a specific endowment of less ad ostium ecclesiae, the widow had still no power to waive it after her husband’s death. And this continued to be law, during the reigns of Henry III. and Edward I.90 In Henry IV’s time it was denied to be law, that a woman can be endowed of her husband’s goods and chattels:91 and, under Edward IV, Littleton lays it down expressly, that a woman may be endowed ad ostium ecclesiae with more than a third part;92 and shall have her election, after her husband’s death, to accept such dower, or refuse it and betake herself to her dower at common law.93 Which state of uncertainty was probably the reason, that these specific dowers, ad ostium ecclesiae and ex assensu patris, have since fallen into total disuse.
I proceed therefore to consider the method of endowment, or assigning dower, by the common law, which is now the only usual species. By the old law, grounded on the feudal exactions, a woman could not be endowed without a fine paid to the lord: neither could she marry again without his license; lest she should contract herself, and so convey part of the feud, to the lord’s enemy.94 This license the lords took care to be well paid for; and, as it seems, would sometimes force the dowager to a second marriage, in order to gain the fine. But, to remedy these oppressions, it was provided, first by the charter of Henry I,95 and afterwards by Magna Carta,96 that the widow shall pay nothing for her marriage, nor shall be distrained to marry afresh, if she chooses to live without a husband; but shall not however marry against the consent of the lord: and farther, that nothing shall remain in her husband’s capital mansion-house for forty days after his death, during which time her dower shall be assigned. These forty days are called the widow’s quarantine; a term made use of in law to signify the number of forty days, whether applied to this occasion, or any other.97 The particular lands to be held in dower, must be assigned98 by the heir of the husband, or his guardian; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the lands so held. For the heir by this entry becomes tenant thereof to the lord, and the widow is immediate tenant to the heir, by a kind of subinfeudation or under-tenancy, completed by this investiture or assignment: which tenure may still be created, notwithstanding the statute of quia emptores, because the heir parts not with the fee-simple, but only with an estate for life. If the heir or his guardian do not assign her dower within the term of quarantine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it.99 If the thing of which she is endowed be divisible, her dower must be set out by metes and bounds; but, if it be indivisible, she must be endowed specially; as, of the third part of the profits of an office, the third sheaf of tithe, and the like.100
Upon preconcerted marriages, and in estates of considerable consequence, tenancy in dower happens very seldom: for, the claim of the wife to her dower happens very seldom: for, the claim of the wife to her dower at the common law diffusing itself so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alteration of the ancient law respecting dower ad ostium ecclesiae, which has occasioned the entire disuse of that species of dower, jointures have been introduced in their stead, as a bar to the claim at common law. Which leads me to inquire, lastly,
4. How dower may be barred or prevented. A widow may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband, and other disabilities before-mentioned, but also by detaining the title deeds, or evidences of the estate from the heir; until she restores them:101 and, by the statute of Gloucester,102 if a dowager alienes the land assigned her for dower, she forfeits it ipso facto, and the heir may recover it by action. A woman also may be barred of her dower, by levying a fine or suffering a recovery of the lands, during her coverture.103 But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.
A jointure, which strictly speaking signifies a joint estate, limited to both husband and wife, but in common acceptation extends also to a sole estate, limited to the wife only, is thus defined by Sir Edward Coke;104 “a competent livelihood of freehold “for the wife, of lands and tenements; to take effect, in profit or possession, presently after the death of the husband; for the life of the wife at least.” This description is framed from the purview of the statute 27 Hen. VIII. c. 10. before-mentioned; commonly called the statute of uses, of which we shall speak fully hereafter. At present I have only to observe, that, before the making of that statute, the greatest part of the land of England was conveyed to uses; the property or possession of the soil being vested in one man, and the use, or profits thereof, in another; whose directions, with regard to the disposition thereof, the former was in conscience obliged to follow, and might be compelled by a court of equity to observe. Now, though a husband had the use of lands in absolute fee-simple, yet the wife was not entitled to any dower therein; he not being seized thereof: wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives, in joint-tenancy or jointure; which settlement would be a provision for the wife in case she survived her husband. At length the statute of uses ordained, that such as had the use of lands, should, to all intents and purposes, be reputed and taken to be absolutely seized and possessed of the soil itself. In consequence of which legal seizin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special lands that might be settled in jointure; had not the same statute provided, that upon making such an estate in jointure to the wife before marriage, she shall be for ever precluded from her dower.105 But then these four requisites must be punctually observed. 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur auter vie, or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be, in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband’s death, as in dower ad ostium ecclesiae, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capable of consenting to it during coverture. And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statue) have her dower pro tanto at the common law.106
There are some advantages attending tenants in dower that do not extend to jointresses; and so, vice versa, jointresses are in some respects more privileged than tenants in dower. Tenant in dower by the old common law is subject to no tolls or taxes; and here is almost the only estate on which, when derived from the king’s debtor, the king cannot distrain for his debt; if contracted during the coverture.107 But, on the other hand, a widow may enter at once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiae, which a jointure in many points resembles; and the resemblance was still greater, while that species of dower continued in its primitive state: whereas no small trouble and a very tedious method of proceeding, is necessary to compel a legal assignment of dower.108 And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow.109 Wherefore Sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiae, the most eligible species of any.