Sugd. 321-325, n.; Fearne, 347, n. by Butl. 7th ed.; 2 Dav. Conv. 210; 3 & 4 Will. 4, 3 Dav. Conv. 249, n. (o); Collard v. Roe (4 De G. & J. 525). A limitation c. 105, s. 1. to the old uses to bar dower will not deprive of her dower a woman married since the passing of the act (Fry v. Noble, 7 D. M. & G. 687).

Under 13 Edw. 1, c. 34, a woman forfeits her dower by adultery, even Forfeiture of though brought about by her husband's cruelty (Hetherington v. Graham, dower by 6 Bing. 139; Woodward v. Dowse, 10 C. B. N. Š. 722; Bostock v. Smith, adultery. 34 Beav. 57). Under the old law a divorce à vinculo matrimonii was a bar to dower (Frampton v. Stephens, 21 Ch. D. 164), and so now is a decree for dissolution of marriage (Ib.) But divorce of a wife à mensa et thoro by the Ecclesiastical Court, before 20 & 21 Vict. c. 85, for adultery, did not preclude her from obtaining her distributive share in the personal estate of her intestate husband (Rolfe v. Perry, 11 W. R. 357).

:

Dower was extinguished by a deed duly acknowledged by the wife, Bar by aceven where her name was not inserted as a co-grantor (Dent v. Clayton, knowledged 12 W. R. 903).

deed.

The usual remedy for the recovery of dower is by action in the Chancery Remedies for Division. For instances of such actions, see Sheaf v. Cave (24 Beav. 259); the recovery Bamford v. Bamford (5 Hare, 203); Marshall v. Smith (5 Giff. 37); of dower. Dawson v. Bank of Whitehaven (6 Ch. Div. 218); Meek v. Chamberlain (8 Q. B. Div. 31); see also the forms of orders, Seton, 681; Kernaghan v. M'Nally (11 Ir. Ch. Rep. N. S. 52). As to costs, see Harris v. Harris (11 W. R. 62); Stormont v. Wickens (14 W. R. 192).

As to the period in which the right to sue for dower is barred, see Limitation. Marshall v. Smith (5 Giff. 37). As to the arrears of dower which may be recovered, see ante, p. 185.

The Dower Act does not apply to freebench (Smith v. Adams, 5 D. M. Freebench. & G. 712). Freebench, in the absence of any custom to the contrary, does not attach even in right until the husband's death (Benson v. Scott, 12 Mod. 49; 2 Ves. sen. 633; Godwin v. Winsmore, 2 Atk. 526; R. v. Lopen, 2 T. R. 580; Brown v. Raindle, 3 Ves. jun. 256). And therefore any alienation by him alone, even by contract (Hinton v. Hinton, 2 Ves. sen. 631), to take effect in his lifetime, defeated the widow's claim (Benson v. Scott, 3 Lev. 385; Goodwin v. Windmore, 2 Atk. 526; Farley's case, Cro. Jac. 36; Moor, 758; Dagworth v. Radford, Sir W. Jones, 462; 1 Freem. 516; Gilb. Ten. 321; see 2 Watk. on Cop. 73–79; Shelford on Copyholds, pp. 68-72). And if a man surrendered his copyhold estate to the use of his will, and then devised it, the widow did not take freebench (Lacy v. Hill, 19 Eq. 350). Now under sect. 3 of the Wills Act a devise without a surrender has the same effect (Ib.; see Powdrell v. Jones, 2 Sm. & G. 407, where it was held that a devise did not bar freebench, the special custom of the manor being that the title of the wife could only be destroyed by her voluntary surrender; Riddell v. Jenner, 10 Bing. 29; Doe v. Gwinnell, 1 Q. B. 682).

Where a purchaser of a copyhold took a surrender, but died before admittance; held, that his widow was not entitled to freebench (Smith v. Adams, 5 D. M. & G. 712). Secus, where the heir of the purchaser had been admitted (Vaughan v. Atkins, 5 Burr. 2764). A widow was held not entitled to freebench out of a moiety of copyholds to which her husband was entitled in remainder after a life estate (Smith v. Adams, 18 Beav. 499). Nor out of trust estates (Forder v. Wade, 4 Bro. C. C. 520).

The widow of a tenant in tail is entitled to freebench, though there is no custom as to the freebench of widows of tenants in tail, but only as to widows of tenants in fee (Doe v. Sanders, 3 Dougl. 303).

A marriage settlement"in order to make some provision for" the intended wife in case she should survive her husband, settled some of the husband's copyholds, after his death, on her for life: held, that she was not thereby barred of her freebench in other copyholds, as to which the husband died intestate (Willis v. Willis, 34 Beav. 340).

See further Scriven on Copyholds, 65 et seq., 6th ed.

The Dower Act extends to lands of gavelkind tenure (Farley v. Bonham, Gavelkind. 2 J. & H. 177). By the custom of gavelkind, the wife, after the death

3 & 4 Will. 4, of her husband, shall have for her dower a moiety of all lands of her c. 105, s. 1. ́ husband so long as she continues chaste (Rob. on Gay. by Wilson, pp. 205 -236). The most to dower of the wide, is.

Widows to
be entitled to

dower out of
equitable
estates.

Old law.

Mortgages.

Reversions and remainders.

is not acucted by the provision inade

for

DOWER OF EQUITABLE ESTATES.

her by s4

2. When a husband shall die, beneficially entitled to any land for an interest which shall not entitle his widow to dower out of the same at law, and such interest, whether wholly equitable, or partly legal and partly equitable (m), shall be an estate of inheritance in possession, or equal to an estate of inheritance in possession (other than an estate in joint tenancy) (n), then his widow shall be entitled in equity to dower out of the same land.

(m) For examples of interests to which this act would apply, see Re Michell, Moore v. Moore, 1892, 2 Ch. 99.

Before this act there was no dower out of equitable estates (Dawson v. Bank of Whitehaven, 6 Ch. Div. 221; D'Arcy v. Blake, 2 Sch. & Lef. 388; Re Michell, Moore v. Moore, 1892, 2 Ch. 93).

Where an estate was subject to a mortgage in fee at the time of the marriage, and continued so during the coverture, the widow was not entitled to dower (Dixon v. Saville, 1 Br. C. C. 326). Where the husband was seised merely as a mortgagee or trustee, the wife was entitled to dower at law, but subject in equity to the same right of redemption or trust as her husband was liable to; but a court of equity would interfere to prevent a widow from taking advantage of her legal right (Hinton v. Hinton, 2 Ves. sen. 634; see 2 Freem. 43, 71; 1 Burr. 117; Butl. Co. Litt. 205 a, n. (1), 11th ed.; Lyster v. Mahony, 1 Dru. & War. 242; Flack v. Longmate, 8 Beav. 420; Knight v. Frampton, 4 Beav. 10). Where a wife, married before the act, joined in a mortgage in fee in her husband's land, to release her dower, she had no right to redeem (Dawson v. Bank of Whitehaven, 6 Ch. Div. 221). But where the husband died seised in fee, a subsequent mortgage by the heir in which the widow joined did not extinguish her right to dower or reconveyance (Meek v. Chanberlain, 8 Q. B. D. 31).

So a woman is not entitled to dower of estates of which the husband was seised in fee, subject at the time of his marriage to leases for lives, which did not expire during the coverture (D'Arcy v. Blake, 2 Sch. & Lef. 387; Fitz. Abr. Dower, pl. 184; Br. Abr. Dower, pl. 44; Co. Litt. 32a; Co. Litt. 203 a, Harg. note; Perk. 333, 348; Forder v. Wade, 4 Br. C. C. 520). There was no right of dower in land subject to a contract for sale at the time of the marriage. It was the same in the case of a contract made after marriage, but before the legal estate was vested in the husband. So if the husband conveyed a legal estate in remainder, not subject to dower at the time of the conveyance, dower would not afterwards attach on that estate in favour of the wife, merely because, if he had not conveyed the estate, it would have fallen into possession, and become liable to dower (Lloyd v. Lloyd, 4 Dru. & War. 370). On the surrender in deed or in law of the life estate to the husband the right of dower will attach (1 Roll. Abr. 676, pl. 40). But if a rent be reserved on a lease for years, made before marriage, the wife will be entitled to recover dower of the third part of the rent immediately, and also of the land, with a cesset executio during the term (Prec. Ch. 250). And the wife of a man entitled to lands under a devise to him in fee or in tail, subject to a chattel interest for raising the testator's debts, is dowable after payment of them (Co. Litt. 41 a; 8 Rep. 96 a; 2 Vern. 404). Where a husband was seised in fee subject to a trust term to secure life annuities and to pay himself half the surplus rents, his

widow was entitled to have her dower set out (Sheaf v. Cave, 24 Beav. 3 & 4 Will. 4, 259). Where a husband was entitled to an equitable estate in fee simple c. 105, s. 2. in certain land determinable in the event, which took place, of his dying without leaving issue living at his decease, his widow was, notwithstanding the operation of the executory devise over, entitled under this section

to dower out of the land (Smith v. Spencer, 4 W. R. 729).

(n) The widow of a joint tenant in fee or in tail is not entitled to dower, Joint tenants. because, upon the death of one of the joint tenants, the estate goes to the survivor, who is then in from the first grantor, and may plead the deed creating the estate as originally made to him, without naming his companion (Litt. s. 45; Co. Litt. 37 b, 30 a, 183 a). And if a joint tenant aliens his share, his wife shall not be endowed (Fitz. N. B. 150; Br. Dow. pl. 30; Cro. Jac. 615).

A widow concurred in a partition of her husband's estate, and released a moiety allotted to the other tenant in common from her dower; the other moiety was conveyed to the trustees of her husband's will: it was held, that she was entitled to dower out of the entirety of the latter moiety (Reynard v. Spence, 4 Beav. 103).

SEISIN OF HUSBAND.

3. When a husband shall have been entitled to a right of Seisin shall entry or action in any land, and his widow would be entitled to not be necesdower out of the same, if he had recovered possession thereof, title to dower. sary to give she shall be entitled to dower out of the same, although her husband shall not have recovered possession thereof provided that such dower be sued for or obtained within the period during which such right of entry or action might be enforced (0).

(0) A right of entry is where a man, who has the possession of lands, is Right of disseised or ousted, or, having a right to the possession, is kept out of it; entry. in which case he may peaceably make an entry upon the lands, or bring an action of ejectment to recover possession (See Rosc. on Real Actions, 79, &c.; 1 Real Prop. Rep. 493). The time within which a right of entry must be prosecuted is now prescribed by statute 3 & 4 Will. 4, c. 27 (See ante, p. 112 et seq.)

Seisin is a technical term, to denote the completion of that investiture Seisin. by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass (1 Burr. 107). One of the circumstances required to give a title of dower before this act was, that the husband should be seised during the coverture of the estate whereof the wife is to be endowed. A seisin in law was sufficient, without a seisin in deed. A seisin in law, in its usual acceptation, is where the inheritance in lands and hereditaments, of which a man died seised or possessed, descends upon his heir, who dies before entry or possession (Litt. s. 448). In such a case, if the heir leave a widow, she will be entitled to dower (Litt. s. 681). On conveyances under the Statute of Uses, the bargainee or cestui que use is seised in law immediately on the delivery of the deed, and therefore his wife was dowable, although no entry had been made by him, or other act done to acquire an actual seisin. As if lands were bargained and sold, and a stranger entered, and then the deed was inrolled and the bargainee died, his wife would be endowed (2 And. 161; Gilb. Uses by Sugd. 213; see Cro. Jac. 604), but if the husband had died before inrolment, she would not have been endowed (Gilb. Uses, 213).

But wherever an actual entry was necessary to give effect to a convey

3 & 4 Will. 4, c. 105, s. 3.

ance, as in the case of an exchange at common law, the wife was not entitled to dower, unless the husband had entered (Perk. s. 368; Park on Dower, 34).

No dower out of estate disposed of.

Priority to partial estates,

charges, and specialty debts.

By old law the husband

alone could not defeat dower.

Old rule that a devise of lands liable

to dower was primâ facie a devise of them

subject to the right of dower.

Widow put

to her election where

will contained provisions inconsistent

with right to

dower.

Powers of or trusts for sale.

New law.

ALIENATION, &C. BY HUSBAND.

4. No widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will (p).

(p) A devise of "all my real estate" to trustees on trust for sale will bar dower under sect. 4 (Lacey v. Hill, 19 Eq. 346; see Rowland v. Cuthbertson, 8 Eq. 466).

5. All partial estates and interests, and all charges created by any disposition or will of a husband, and all debts, incumbrances, contracts and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower (q).

(9) Before this act, after a title of dower had once attached, it was not in the power of the husband alone to defeat it by any act in the nature of alienation or charge (3 Lev. 386; Co. Litt. 32; F. N. B. 147 (E)). The alienation of the husband, whether voluntarily, as by deed or will, or involuntarily, as by bankruptcy, &c., would not defeat the wife's right of dower against the husband's alienee (Shep. T. 275; Stoughton v. Leigh, 1 Taunt. 410; Co. Litt. 46 a; 7 Rep. 8, 72; Jenk. Cent. p. 36; see Park on Dower, 237, 238).

In the case of women married before this act, where a benefit was given by the will to the testator's widow, a question was often raised whether she was not thereby precluded from claiming dower out of lands devised by that will. The rule was that a devise of lands liable to dower was prima facie a devise of them subject to the right to dower; and a widow was accordingly entitled to claim both her dower and the benefit given by the will (Birmingham v. Kirwan, 2 Sch. & Lef. 444; Ellis v. Lewis, 3 Hare, 313; Gibson v. Gibson, 1 Drew. 42). But certain provisions were considered as inconsistent with the right to dower, and where a will contained such provisions, the widow was put to her election. Thus she was put to her election where a testator provided that his daughter should have the personal use, occupation and enjoyment of a house (Miall v. Brain, 4 Mad. 119; see Butcher v. Kemp, 5 Mad. 61; Roadley v. Dixon, 3 Russ. 192). Also, where a testator gave to trustees an express power to lease, and also the general power to manage and to cut timber for repairs at their discretion (Parker v. Sowerby, 4 D. M. & G. 321; overruling Warbutton v. Warbutton, 2 Sm. & G. 163; see Linley v. Taylor, 1 Giff. 67). But powers of, or trusts for, sale were held not inconsistent with a widow's right to dower; nor was a direction as to the distribution of the proceeds (Bending v. Bending, 3 K. & J. 57; see further, 1 Jarm. Wils. 458 et seq.; Hawk. Wills. 275; 1 L. C. Eq. 523 et seq.

By the above sections all dispositions by the husband are made effectual as against the right of his widow to dower. Thus a mortgage by a husband is a bar pro tanto of dower (Jones v. Jones, 4 K. & J. 361).

Notwithstanding the statute 3 & 4 Will. 4, c. 104 (post, p. 377), and the 5th section of this act, the widow's right to dower or freebench has still priority over mere creditors of a deceased husband (Spyer v. Hyatt, 20 Beav. 621).

6. A widow shall not be entitled to dower out of any land 8 & 4 Will. 4, of her husband, when in the deed by which such land was c. 105, s. 6. conveyed to him, or by any deed executed by him, it shall be Dower may declared that his widow shall not be entitled to dower out of such land (→).

(r) A declaration contained in the deed of conveyance is sufficient under this section, although the deed was not executed by the husband (Fairley v. Tuck, 27 L. J. Ch. 28; 6 W. R. 9). A declaration in bar of dower in a conveyance of real estate, prior to this act, will not deprive a wife, married after this act, of her dower (Fry v. Noble, 20 Beav. 598; 7 D. M. & G. 687; Clarke v. Franklin, 4 K. & J. 266).

be barred by a declaration in a deed;

husband's

7. A widow shall not be entitled to dower out of any land of or by a declawhich her husband shall die wholly or partially intestate, when ration in the by the will of her husband duly executed for the devise of free- will. hold estates, he shall declare his intention that she shall not be entitled to dower out of such land, or out of any of his land.

8. A right of a widow to dower shall be subject to any con- Dower shall ditions, restrictions, or directions which shall be declared by the be subject to will of her husband duly executed as aforesaid.

restrictions.

9. Where a husband shall devise any land out of which his Devise of widow would be entitled to dower if the same were not so de- real estate to the widow vised, or any estate or interest therein, to or for the benefit of shall bar her his widow, such widow shall not be entitled to dower out of or dower. in any land of her said husband, unless a contrary intention. shall be declared by his will (s).

(8) According to the law before this act a devise by a husband for the Old rule as to benefit of his wife, who was entitled to dower, did not operate as a satis- when widow faction of such right, unless an intention was expressed, or could be was put to inferred, that the gift by the husband was in lieu of dower, in which case election. the wife could not claim both, but was put to her election (Thompson v. Burra, 16 Eq. 601; see the cases collected in Rop. on Husb. and Wife, by Bright, c. 11, s. 3; and see 1 Jarman on Wills, 458 et seq.; Lawrence v. Lawrence, 2 Vern. 365; Freem. 244; 3 Br. P. C. 484; 1 Swanst. 398, n.; 1 Br. C. C. 292, n. by Belt; Hall v. Hill, 1 Dru. & War. 102; Holdich v. Holdich, 2 Y. & C. C. C. 18; Goodfellow v. Goodfellow, 18 Beav. 356); even where the devise was only for the life of the widow (Chalmers v. Storil, 2 Ves. & B. 224; Dickson v. Robinson, Jac. R. 503; Roberts v. Smith, 1 S. & St. 513). For cases where the gift of an annuity did not put the widow to her election, see Dowson v. Bell (1 Keen, 761); Harrison v. Harrison (1 Keen, 765); Wetherell v. Wetherell (10 W. R. 818).

As to how far a widow was prevented from exercising her election, by Effect of receiving a provision given in lieu of dower, see Parker v. Downing (2 receiving proJur. 28); Eland v. Eland (2 Jur. 852); Reynard v. Spence (4 Beav. 103); vision given Sopwith v. Maughan (30 Beav. 235). As to the right of election in such in lieu of dower. a case possessed by the next of kin of a widow who had not elected, see Fytche v. Fytche (7 Eq. 494).

This act has given the husband complete power to defeat the right of New law. dower, either by deed or will (sects. 4 and 5); and where any interest in the land otherwise liable to dower is given to the wife, in order to preserve the right of dower, an intention to that effect must be declared (sect 9), although no gift to the wife out of personal estate is to defeat the right of dower, unless an intention to do so be declared by the will (sect. 10).

Where a testator devised his real and personal estate to trustees upon trust for sale and conversion and payment of an annuity out of the income of the proceeds to his widow, she was deprived of her right to dower by