Imágenes de páginas
PDF
EPUB

DOWER.

Who intitled to it.

A legal marriage necessary.

Distinction on the subject be

tween a mar

riage void and voidable.

3. As to her right to endowment of improvements, and when intitled to more than one third of the estate for dower.

4. The necessary seisin of the husband; and 5. Of the issue as to dower.

III. Assignment of dower.

1. When to be made.

2. By whom.

3. In what manner; and the remedies for excessive assignments.

4. Effects of assignments in regard to the husband's incumbrances.

IV. Widow's interest, rights, and powers, in respect of her estate in dower.

V. Remedies for obtaining dower.

1. In a Court of Law; and
2. In a Court of Equity.

I. Who are intitled to dower.

In order to intitle a woman to this legal provision, she must answer the description of a lawful wife. Marriage, therefore, must have been legally solemnised between persons competent to enter into the contract; for a husband's second marriage during the life of his first wife, will not intitle the second to dower; and the law is the same if a wife take a second husband while the first is living, because such marriages are void; so that the second wife in the first case, and the wife in the second, are not lawful wives (a). But if the marriage be not actually void, but voidable, and it continue undissolved by sentence during the husband's life, his widow will be intitled to dower; since it is too late

(a) Moor, 226. Perk, sect. 304.

Dower.

Who intitled

to apply for the avoidance of the marriage after his
death (a). Thus, in Rennington's case (b), the widow
claimed dower. It was urged against her demand, to it.
that she was niece to her deceased husband's first
wife; but the objection did not prevail, since there
was no divorce during the husband's life.

certificate.

When in a writ of dower the legality of the mar- Evidence of marriage, riage is the point in issue, and it was celebrated in this country, no evidence is admissible upon the subject but the certificate of the Bishop of the diocese by Bishop's where the marriage was solemnised (c). This certificate, when granted, is final; it cannot therefore be replied to (d). Hence the Bishop need not to certify the day or place of the marriage (e). His general certificate of the parties having or not having been legally married is sufficient (f); the forms of which and of the pleadings may be seen by referring to the books mentioned in the note (g). But if the marriage be celebrated in a foreign country, and consequently out of the jurisdiction of the temporal courts of this kingdom, in such cases since those Courts cannot compel a return to a writ directed to the Bishop, the legality of the marriage must, therefore, of necessity be tried by a British jury. When by a "If," said the Court, in Ilderton v. Ilderton (h), "the jury. trial cannot be by certificate, we lay it down as a proposition fundamental and incontrovertible, that

(a) Moor. 225, 228. Wickham v. Enfield, Cro. Car. 352. Co. Litt. 33. (b) Noy's Rep. 29.

(c) 2 Burn Eccl. Law, 486. Dyer, 368 b. (d) See Harg. Law Tracts, 452, and Robins v. Crutchley, 2 Wils. Rep. 122. (e) Cro. Car. 352. (f) Dyer,

368, b. 9 Rep. 19, b. (g) Co. Entr. 180, 181. Rast. Ent. 228.

1 Bro. Ent. 204. Rob. Ent. 240.

(h) 2 Hen. Black. Rep. C. P.

DOWER,

Who intitled

to it.

Marriages on elopements to Scotland seem to be

valid.

Reasons.

the trial is to be by the country; and for a reason that is unanswerable, that there may not be a failure of justice."-In that case the marriage took place in Scotland, and as the subject under consideration was fully and ably discussed, it is worthy of the particular attention of the reader.

It is proper to consider, as connected with the present subject of inquiry, the validity of those marriages where the parties elope, go to Scotland, marry there, and return immediately afterwards. To form a rational judgment upon this matter, it is necessary to ascertain what the law was previously to the passing of the marriage-act (a), and whether that statute made any alteration in this instance.

Before that act, the age required by the common law to render obligatory a marriage between two persons, was that of fourteen in the male, and of twelve in the female (b). If they had attained those ages, the law considered them competent to enter into the marriage agreement without the consent of any persons: these were the ages of legal discretion, The common law even permitted them under those ages to contract for a future marriage, from which however they were allowed to dissent when they arrived at such ages of discretion (c), The laws of England and Scotland concurred in the above particulars, and the law of Scotland still continues the same (d); so that, whether in England or in Scotland, if the male had attained to fourteen years, and the female to twelve, their marriage would have been legal and binding without the consent of any one.

(a) 26 Geo. 2. c. 33. (6) Co. Litt. 79.
(d) 1 Ersk. Prin. of the Law of Scotland, 62.

(c) Litt. sect. 104.

This liberty having been found inconvenient, the DOWER. marriage act was passed, which renders void all Who intitled marriages in England of persons by licence under to it. the ages of twenty-one, without the consent of the fathers of the minors; or, if dead, of the guardians lawfully appointed by them; or, if there be none, then of the mothers, if unmarried: or, if dead or married, then of guardians to be appointed by the Court of Chancery. The statute does not require consent to the marriages of minors after due publication of banns; the legislature having considered that, from the publicity of the notice, &c., it was in the power of the parents, guardians, or friends of the infants, to prevent such marriages if they were improper. The act in conclusion declared, that nothing in it should extend to Scotland. It is ob vious, then, that the act introduced a new rule in regard to the marriages of minors celebrated in this country; but with respect to those performed in Scotland, they being excepted, the rule of the common law remained as to them: therefore, as before the statute, the marriage of a male of the age of fourteen years, with a female of the age of twelve, was good; so, as it seems, it will be, since the act, if it be solemnised in Scotland according to the law of that country. Hence it appears, that the opinions of writers upon the law of nations, against the validity of marriages between the subjects of one state, in another, to which they went to evade the laws of their own, are not applicable to the present subject(a); for here there is no evasion, no breach of any law,-not of the marriage act, because marriages in

(a) Huber. ad Pand. lib. 1. t. 3, De-conflictu legum, şect. 8.

DOWER.

Who intitled to it.

Scotland are excepted,-nor of the common law of England, since, prior to that statute, such marriages here were valid. There is, therefore, no principle, as it would seem, upon which these marriages can be considered illegal. Their validity, however, rests not solely upon the strength of the above observations; for it was decided in Compton v. Bearcroft, on appeal to the delegates (a), that a marriage in Scotland between two English subjects, the appellant under age and having eloped with the respondent without the consent of her guardian, was a good marriage.

This being the solemn decree of the proper and highest jurisdiction over the present subject, has, as it is conceived, settled the law in favour of those marriages. To which may be added, the opinion of Lord Eldon in ex parte Hall (b). In that case, the parties eloped and were married in Scotland, the wife being then under age. Previously to a re-marriage in England, it was agreed between the fathers of the husband and wife, that they should make mutual settlements upon their two children, which were effected by A the husband's father executing a bond before the second marriage, securing an annuity to the wife, and by B the wife's father agreeing to pay an annuity to the husband, and which was regularly discharged. A was solvent when he executed his bond, and paid the annuity till shortly before he became a bankrupt. Lord Eldon supported the bond of A against his creditors, under the above circumstances, but delivered an opinion

(a) 1 Dec. 1768, and briefly stated in Bull. N. P. 113. See also Dodson's Report of Sir William Scott's Judgment in Dalrymple v. Dalrymple. (b) 1 Ves. and Bea. 112-114.

« AnteriorContinuar »