husband, also defeats the wife's dower; but if he give up the land by default, and collusively, the statute of Westm. 2. c. 4, preserved the wife's dower, unless the tenant could show affirmatively a good seisin out of the husband and in himself. This statute, according to Perkins, was an affirmance of the common law. The principle is, that the wife shall have dower of lands of which her husband was of right seised of an estate of inheritance, and not otherwise. If, therefore, a disseisor die seised, 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 disseisee. 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. But under the complicated modifications of seisin, contemplated in the ancient law, and which are collected and digested by Perkins, in his excellent repository of the blackletter learning of the Year Books, the seisin of the husband

was sometimes defeated so as to bar dower, though the *49 right remained in him; and in other *cases, the dower would be preserved though the seisin was defeated, by reason of some prior distinct seisin which had attached in the husband.d

If the husband be seised 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

Perkins, sec. 376. It was, however, re-enacted in totidem verbis, in NewYork, 1787. Laws of New-York, sess. 10. c. 4. sec. 4. And it is in substance adopted and enlarged by the New-York Revised Statutes, vol. i. 742. sec. 16, which declare, that "no judgment or decree confessed by or recovered against the husband; and no laches, 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." See, also, to S. P. Statute of Ohio, 1824. Chase's Statutes, vol. ii. 1315.

b Litt. sec. 393. Co. Litt. 240. b. Berkshire v. Vanlore, Winch. 77.

• Perkins, sec. 381.

Perkins, sec. 379, 380. Park on Dower, 148.

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. 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. (1) 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. Whether dower will 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. The estate of the husband is, in a more emphatical degree, overreached and defeated *by the taking effect of the *50 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.d

As a general principle, it may be observed, that the wife's dower is liable to be defeated by every subsisting claim or incumbrance in law or equity, existing before the inception of the title, and which would have defeated the husband's

• Bro. tit. Tenures, pl. 33, tit. Dower, pl. 86. Paine's Case, 8 Co. 34. Jenk. Cent. 1. case 6. p. 5.

Jenk. Cent. supra. Preston on Abstracts of Title, vol. iii. 373. Butler's note, 170, to Co. Litt. 241. a.

• The cases of Sammes v. Payne, 1 Leon, 167. Goldsb. 81. Flavill v. Ventrice, Viner's Abr. 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 law.

Butler's note, 170, to Co. Litt. 241. a. Sugden on Powers, 333. Preston on Abstracts of Title, vol. iii. 372. Park on Dower, 168-186.

VOL. IV.

(1) Beardslee v. Beardslee, 5 Barb. S. C. Rep. 324.

4

seisin. 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 of dower is regulated in equity by the nature of the property in the equity view of it.a

*51

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 or seisin. 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 his wife, given and proved according to law; and this is now the declared statute law of New-York.b *If the husband and wife levy a fine, or suffer a common recovery, the wife is barred of her dower.c This was until lately the only regular way, in the English law, of barring dower, after it has duly attached, but now, by the statute of 3 and 4 Wm. IV. c. 105, power is given to the husband in various ways, in his discretion, to bar his wife's right of dower, as by conveyance in his lifetime, by devise, or by his declaration by will that his lands shall be exempt from her dower.d 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. 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

■ 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. Coster v. Clarke, 3 Edwards' N. Y. Ch. Rep. 47.

New-York Revised Statutes, vol. i. 742. sec. 16.

• Lampet's Case, 10 Co. 49. b. Eare v. Snow, Plowd. 504. See ante, p. 44, note.

• Goodell v. Bingham, 1 Bos. & Pull. 192.

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 the subsequent exercise of the power, as being a prior or 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, the conveyancers have limited the land to the use of the purchaser's appointee, and, in default of the 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. 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 his wife, in trust for the *52 purchaser's heirs and assigns, with remainder to the heirs of the purchaser in fee. 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. In this country we are, happily, not very liable to be perplexed by such abstruse questions and artificial rules, which have incumbered the subject of dower in England to a grievous extent. Even in those states where the right of dower, as at common law,

■ Butler's note, 119, to Co. Litt. 216. a., and note 330, to Co. Litt. 379. b. 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, 10. Vesey, 263. 265, 266. Heath, J., in 3 ibid. 657.

Butler's note, 330, to Co. Litt. lib. 3.

• Park on Dower, 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..

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 seisin 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, accompanied with elopement, 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 a very material modification in the new revised code. The same provision

Laws of New-York, sess. 10. c. 4. sec. 7. New-York Revised Statutes, vol. i 741. sec. 8. 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 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 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 offence 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 impotentiæ. New-York Revised Statutes, vol. ii. 142, 143, 144. It is uncertain 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 useless; and it ought to be added, in justice to the revisors, that the bill, as originally reported by them, 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 offence, if any, which was to destroy the dower.