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tenant for life, may forfeit his courtesy 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. In New-York, this rule of the common law existed until lately. The statute of Westm. 2, cap. 24, giving a writ applicable to such cases of forfeiture, was re-enacted in 1787. The injury of the alienation to the heir was removed by the statute of 6 Edw. I. cap. 3, also reenacted in 1787. That statute declared, that alienation by the tenant by the courtesy, 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 New-York, by a provision of the new statute code, which *declares that a convey- *35 ance 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.d

(3.) The next species of life estates created by the act of the law, is that of dower. It exists where a man is seised 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

alike on this point, and if he leaves his wife and lives with an adulteress, he loses his right of tenancy by the courtesy. Revised Statutes of Indiana, 1838, p. 240. ■ Co. Litt. 251, a. b. 302, b. 2 Inst. 309.

b Laws N. Y., sess. 10. c. 50. sec. 6.

• Laws N. Y., sess. 10. c. 48. sec. 8. The same provision against alienations by the tenant by the courtesy, was enacted in New-Jersey, in 1798. Elmer's Dig. 78. When the estate by the courtesy is once vested in the husband, it becomes liable to his debts, and cannot be divested by his disclaimer. Watson v. Watson, 13 Conn. Rep. 82. The creditors have a right to sell the same on execution at law. Lessee of Canby v. Porter, 12 Ohio Rep. 79. A voluntary settlement of that courtesy upon the wife by the husband, is void as to his creditors. Vanduzer v. Vanduzer, 6 Paige's Rep. 366. Wickes v. Clarke, 8 ib. 161.

a N. Y. Revised Statutes, vol. i. 739, sec. 143. 145. The Mass. Revised Statutes, in 1835, have made the same alteration in this law of forfeiture. The husband's life estate in his wife's land is liable to be taken, and appropriated and sold for his debts. Litchfield v. Cudworth, 15 Pick. 23.

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husband was seised, either in deed or in law, at any time during the coverture, and of which any issue that she might have had, might by possibility have been heir.a

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. We find the *36 *law of dower, in the mode of endowing ad ostium ecclesiæ, in common use in the time of Glanville, 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 ;d whereas, in magna charta, the

e

Litt. sec. 36. Perkins, sec. 301. N. Y. Revised Statutes, vol. i. 740, sec. 1. Park's Treatise on the Law of Dower, 5. Chase's Statutes of Ohio, vol. ii. 1314. 1 Virginia R. C. Mass. R. Statutes, of 1835, part 2. tit. 1. c. 60. sec. 1. Aikin's Alabama Dig. 2d ed. p. 132. The New-Jersey statute of 1799 and of 1847, which re-enacts all the essential doctrines of the English law on the subject of dower, omits the condition in the text in respect to the wife's issue. Elmer's Dig. 143. R. S. New-Jersey, 1847. So does the Virginia statute of 1792. Revised Code of Virginia, vol. i. 288, and the Statute of New-York, and the R. L. of Missouri, 1835, p, 226, and of Arkansas. In Arkansas the right of dower is paramount to creditors and purchasers, and the wife also takes her dower in one third of the slaves owned by her husband at his death. Hill v. Mitchell, 5 Arkansas R. 608. In Missouri, the widow is also entitled to dower, in leasehold estates, for a term of twenty years or more.

b 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 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. Stuart's View of Society, 29, 30. 223–227. Olaus Magnus records the same custom among the Goths; and Dr. Stewart 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, 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. voce Doarium, deduces dos from the French douaire ; and Sir Martin 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 courtesy is called droit de viduité. Œuvres de D'Aguesseau, tom. iv. 660.

• Glan. lib. 6. c. 1.

a Bracton, lib. 2. c. 39. sec. 2. Fleta, lib. 5. c. 24. sec. 7.

• C. 7.

law of dower, in its modern sense and enlarged extent, as applying to all lands of which the husband was seised 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 everywhere 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, seisin of the husband, and his death.a 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. But a feme covert, being an alien, was not, by the common law, entitled to be endowed any more than to inherit. This rule has been relaxed in some parts of the country; in New-Jersey there is no distinction, whether widows be aliens or not; and in Maryland, an alien widow, who married in the United States, and resided here when her husband died, was admitted to dower.d In New-York, the alien widow of a natural *born *37 citizen, who was an inhabitant of the state at the passage of the act of 1802, enabling aliens to purchase and hold real estate, is dowable. The act of New-York of the 30th April, 1845,f is more extensive, and gives dower to any wo

Co. Litt. 31. a.

b Co. Litt. 33. a.

7 Co. 42. Kenne's Case, Doct. & Stu. 22.

• Co. Litt. 31. b. Kelly v. Harrison, 2 Johns. Cas. 29. By statute of 7 & 8 Vict. ch. 66, foreign women married to British subjects become thereby naturalized.

Buchanan v. Deshon, 1 Harr. & Gill, 280. By Mass. Revised Statutes of 1835, and in New-Jersey, by statute in 1799, an alien widow takes dower. In Kentucky, on the other hand, a widow, who was not a citizen of the United States at the time of her husband's death, cannot be endowed of his lands in that state. Alsberry v. Hawkins, 9 Dana's Rep. 177. So, also, in Alabama, Cong. Church v. Morris, Alabama R. N. S. vol. viii. 183.

• Priest v. Cummings, 16 Wendell, 617. But this case seems to be contrary to the decision in Connolly v. Smith, 21 Wendell, 59. And in Labatut v. Schmidt, 1 Speers' S. C. Rep. 421, it was left as a doubtful question, whether a wife being an alien, would, by being naturalized, be entitled to dower in lands previously conveyed by her husband.

N. Y. R. S. 3d edit. p. 6.

man who is an alien, and has heretofore married, or may thereafter marry a citizen of the United States. The general provision in the Revised Statutes declares, 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.a

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 seisin 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 seisin. The mere possibility of the estate being defeated by survivorship prevents dower. 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 jointtenant taking by survivorship is destroyed by the severance; for the husband was never sole seised. It is sufficient to give a title to dower, that the husband had a seisin in law, without being actually seised; and the reason given for the distinction on this point between dower and courtesy is, that it is not in the wife's power to procure an actual seisin by the husband's entry, whereas the husband has always the power of procuring seisin of the wife's land.d If land descends to the hus*38 band 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

New-York Revised Statutes, vol. i. 740. sec. 2.

Litt. sec. 45. Maybury v. Brien, 15 Peters' U. S. Rep. 21. But in Indiana, a joint tenant's estate is subject to dower. Revised Code, 1831, p. 290. 3 Blackf. Ind. Rep. 13, note. So in Kentucky, Davis v. Logan, 9 Dana's Rep. 186, because the jus accrescendi is abolished, and there is no good reason why this should not be the consequence in every state, in which the doctrine of survivorship in joint-tenancy is abolished.

© F. N. R. 150. k. Co. Litt. 31. b.

a Bro. tit. Dower, pl. 75. Litt. sec. 448. 681.

Co. Litt. 31. a.

space of time between the death of the ancestor and the entry of the abator, during which time the husband had a seisin in law as heir. But it is necessary that the husband should have been seised 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 seisin of the husband, in the action of dower. If, however, upon the determination of a particular freehold estate, the tenant holds over and continues his seisin, 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 seisin either in fact or in law. The laches of the husband will prejudice the claim of dower when he has no seisin in law, but not otherwise; and Perkins states general cases in illustration of the rule. So, if a lease for life be made before marriage, by a person seised 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 seised of the immediate freehold. If the lease was made sub

sequent to the time that the title to dower attached, the wife is dowable of the land, and defeats the lease by title paramount.

A transitory seisin for an instant, when the same act that

a Perkins, sec. 371, 372. Co. Litt. 31. a.

b Bancroft v. White, 1 Caines' Rep. 185. Embree v. Ellis, 2 Johns. Rep. 119. In an action of ejectment for dower, a purchaser, as well as the heir holding under the husband, or deriving title from under him, is estopped from denying the husband's title. Taylor's Case, Sir William Jones' Rep. 317. Hitchcock v. Harrington, 6 Johns. Rep. 290. Collins v. Torry, 7 ibid. 278. Hitchcock v. Carpenter, 9 ibid. 344. Brown v. Potter, 17 Wendell, 164. (1)

• Perkins, sec. 366, 367, 368, 369, 370. Bro. tit. Dower, pl. 29.

a Co. Litt. 32. a. D'Arcy v. Blake, 2 Sch. & Lef. 387. Shoemaker v. Walker, 2 Serg & Rawle, 556.

(1) In ejectment for dower against the grantee of the husband by quit-claim deed, the grantee is not estopped from showing that the husband was not seised of such an estate as to entitle the wife to dower; and Brown v. Potter, supra, so far as inconsistent with this rule, is no longer law in New-York. Sparrow v. Kingman, 1 Comst. R. 242. Finn v. Sleight, 8

Barb. R. 401. Where two grantors conveyed land with a joint covenant of seisin, and the widow of one of them claimed dower in a moiety of the land, the grantee is estopped from showing that the husband of the plaintiff was seised of less than a moiety. Stimpson v. Thomaston Bank, 28 Maine R. 259. But see Gaunt v. Wainman, 3 Bing. N. C. 69.

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