ON THE

LAW OF INFANCY

INCLUDING

GUARDIANSHIP AND CUSTODY OF INFANTS,

AND THE

LAW OF COVERTURE,

EMBRACING

DOWER MARRIAGE AND DIVORCE,

AND THE

STATUTORY POLICY OF THE SEVERAL STATES

IN RESPECT TO

HUSBAND AND WIFE.

PART 2

BY RANSOM H. TYLER,

COUNSELOR AT LAW.

ALBANY:

WILLIAM GOULD & SON,

LAW BOOKSELLERS AND PUBLISHERS.

1868.

CHAPTER XXVI.

THE LAW OF DOWER-THE NATURE OF DOWER AND ITS HISTORY-DIFFERENT KINDS OF DOWER-REQUISITES FOR DOWER-MARRIAGE— SEISIN OF THE HUSBAND-DEATH OF THE HUSBAND-ISSUE NOT

NECESSARY.

§ 377. DoWER is the estate which the wife has, by operation of law, in the property of her deceased husband, or, more properly, the right which the widow has, in law, to enjoy, for the term of her natural life, a specified portion of the lands and tenements of which her husband was seised during coverture. This applies only to what the law gives the wife independent of any act of the husband, of which he has no power to deprive her.

Some have defined dower to be the provision which was made by the common law for the support of the wife and the nurture of the younger children. (Gilb. on Dower, 363. 2 Black. Com. 130.) Littleton said: "Tenant in dower is, when a man is seised of certain lands or tenements in fee simple, fee tail general, or as heir in special tail, and takes a wife and dies, the wife, after the death of her husband, shall be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, to have and to hold to the same wife in severalty by metes and bounds, for the term of her life, whether she has issue by her husband or not, and of what age soever the wife be, so as she be past the age of nine years at the time of the death of her husband." (Litt. § 36. Co. Litt. 31 a.)

It appears that by the common law the widow has one-third part of the lands and tenements which were her husband's during the marriage (Gray v. McCune, 23 Penn. R. 447); but by the custom in some places, she may have more or less, and in all cases she is called tenant in dower. The general rule, both in England and in the United States, is to allow the widow an estate for life in one-third of all the lands of which the husband was seised in fee during coverture, although the rule is changed or modified by the statutes of some of the states. Dower is a title inchoate, and not consummate until the death of the husband.

§ 378. The origin of dower is involved in considerable doubt and obscurity. The right of dower has been recognized by the customs and laws of every civilized country from a very early age. It was said in one case that "the introduction of dower into Eng

land is of such antiquity that its origin cannot be traced with any degree of certainty." (Wright v. Jennings, 1 Bailey's Law R. 277, 278.) In another, that "it is difficult to trace the origin of dower, but all writers admit it to be of great antiquity." (Hill v. Mitchell, 5 Ark. R. 608, 610.) And in still another case it is said to be " so ancient that neither Coke nor Blackstone can trace it to its origin." (Combs v. Young, 4 Yerg. R. 218.)

Dower is called in Latin by the foreign jurists doarium, but by Bracton and the early English writers dos, which among the Romans signified the marriage portion which the wife brought to her husband, or the money or property given or settled on a marriage. This species of dower, especially in the middle ages, was often very rich. For instance, the Duke of Brabant contracted his daughter to the Black Prince, son of Edward the Third, A. D. 1339, and gave her a portion, which was reckoned in England of the value of over three hundred thousand pounds sterling; and John Galeazzo Visconte, Duke of Milan, concluded a treaty of marriage between his daughter and Lionel, Duke of Clarence, Edward's third son, A. D. 1367, and granted him a portion equal to two hundred thousand pounds sterling. From this statement, some idea may be had of the wealth of the Flemish and Italian commercial states in those ages. But dower in this sense bears no resemblance to the term as now understood. Dower out of the lands seems also to have been unknown in the early part of the Saxon constitution. In the time of King Edmond, the wife was directed to be supported wholly out of the personal estate. Afterward the widow became entitled to a conditional estate in onehalf of the lands, upon condition that she remained chaste and unmarried. Some have ascribed the introduction of dower into England to the Normans, as a branch of their local tenures, though Blackstone did not credit that theory. He thought it possible that it might be in England the relic of a Danish custom; since, according to historians, dower was introduced into Denmark by Swein, the father of Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals. (2 Black. Com. 129.) Other writers ascribe the origin of dower in England to the Germans. Chancellor Kent says: "In the customs of the ancient Germans recorded by Tacitus (De Mor. Germ. c. 18), dotem non uxor marito, sed uxori maritus offert. 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 in land, 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." (2 Kent's Com. 36, note b.) And Mr. Cruise says the estate called dower "is derived from the Germans, among whom it was a rule that a virgin should have no marriage portion, but that the husband should allot a part of his property for her use in case she survived him. * And when the Germans established themselves in the southern parts of Europe, and reduced their customs into writing, they fixed the portion of the husband's lands which he might allot for his wife's dower." (1 Greenl. Cruise, 152, § 1.)

*

*

§ 379. The law of dower appears to have been altered in the reign of King Henry II. In that reign, according to Glanville, every man was bound, both by the civil and ecclesiastical law, to endow his wife at the time of his marriage, either by naming the dower in particular, or by endowing her generally of all his lands. If he endowed her generally, then the wife was entitled to her dos rationabilis, which was one-third of her husband's freehold. If he named a dower which amounted to more than a third, it was not allowed, but was reduced to a third. Nor was the wife entitled to dower out of any of her husband's subsequent acquisitions, unless he specially engaged before the priest to endower her of them. And, it is said, these regulations are exactly similar to those contained in the Grand Constumier of Normandy. (1 Greenl. Cruise, 152, § 3.)

Mr. Cruise says that nothing is mentioned in King John's Magna Charta, or the first charter of Henry III, respecting dower; but in the charters of 1217 and 1224, it is declared that dower should consist of a third of all the lands which the husband held during his life, unless the wife had been endowed of a smaller portion at the church door. (1 Greenl. Cruise, 152, § 4.) But Mr. Scribner says: "This is manifestly an error, for, as we have seen, the right of dower is expressly recognized in both these charters. But it is true that in neither of them is there any thing said as to the extent to which the widow might be endowed, and perhaps it is this omission to which that writer refers." (1 Scribner on Dower, 13.)