Who intitled which could only have been pronounced upon the DOWER. supposition of the marriage in Scotland being valid; "for," said his Lordship, "the settlement after the to it. marriage in Scotland not being ante-nuptial, the recelebration of the marriage in England could not have supported the bond as given for a valuable consideration;" or, in other words, since the marriage in Scotland is a legal and binding marriage, the bond could not be supported against the creditors if it had depended upon the fact of having been given in contemplation of a marriage between the husband and wife, because that ceremony had been previously effectually performed in Scotland, so that the obligation was voluntary, as having been made after marriage (a). countries valid, if made the laws of those - With respect to the bond fide marriages of En- Marriages of glish subjects, celebrated in foreign countries, it British subjects in may be considered that, if they be duly solemnised foreign according to the laws of those countries where the parties happen to be, they will be good, and intitle according to the widows to dower. The validity of one of those marriages was recently countries. litigated in the Consistory Court (b). The suit was instituted by the Honourable Octavia Spinelli, Princess-dowager of Butari in Sicily, commonly called Lady Herbert, against Robert Henry Lord Herbert, son of the Earl of Pembroke, for a restoration of conjugal rights. The parties were married clandestinely at Palermo in August 1814. The marriage was proved by the priest who solemnised it, and that it was performed according to the rites of the Roman (a) Upon the subject of these settlements, see chap. 8. sect. 2. (b) Herbert v. Herbert, 30th April 1819. DOWER. Who intitled to it. Marriages of idiots and lunatics. Catholic Church of Sicily. The parties were not minors when the ceremony took place. Sir William Scott observed, that it was established by law that, if a marriage was valid in the country where it took place, according to the rites and usages of that country, it was a good one here; that it was so held upon a sort of jus gentium; for, however naked the forms might be, however meagre in substance, provided they conformed to that standard, the canonical law recognised them as perfectly valid; that the evidence in this case had established the certainty of these forms having been complied with, and the opinions of several judges in Palermo annexed to the papers before the Court clearly determined the validity of the marriage, although a clandestine one. He therefore decided according to the prayer of Lady Herbert, and decreed Lord Herbert to receive her as his wife with conjugal affection, and to certify to it by the first day of Michaelmas term that he had complied with the Court's injunction. By the common law, which differed from the civil, the marriage of an idiot or lunatic was considered valid, and consequently the wife intitled to dower. But it is now settled that an idiot cannot marry, as being incapable of entering into any contract pro defectu animi (a). And it is provided by the statute of the 15th Geo. II. c. 30, that the marriages of lunatics and persons under phrenzies (if found lunatics under a commission, or committed to the care of trustees by any act of Parliament), before they are declared of sound mind by the Lord Chancellor or the majority of such trustees, shall be void. (a) Morrison's case coram Delegat. Before leaving the present subject, it will be pro Dower. Who intitled per to observe that natural children have been held to be within the marriage-act (a). If the decision had to it. been the reverse, then even in England the marriage of natural of a natural child, an infant, would have been good, children. if, being a male, he were then of the age of fourteen years, and if a female, of the age of twelve (b); and in that case the titles to dower, curtesy, &c. would have attached, as in the usual instances of marriage between adults. There is, however, a difficulty attending the marriage of a natural child, an infant, which does not occur in the instance of a legitimate child, a minor. This arises from his character as such in the view of the law; for he being considered by it as nullius filius, is presumed to have no father or mother to consent to his marriage; consequently his marriage by licence with the consent of either would not be a compliance with the marriage act, and therefore void (c). He will labour under the same disability if his putative father were dead, having by will appointed a guardian for him; for such person would not be his guardian duly appointed as required by that statute, since a putative father is not authorised by the act of Charles the second (d) to appoint a guardian for his natural child (e). The methods, therefore, by which the marriage of a natural child can be legally solemnised, are either after the publication of banns, or after the appointment of a guardian for him by the (a) 26 Geo. II. c. 33. Hughes, 11 East, 1. (d) St. Paul, 2 Bro. C.C. 583. 180. (c) Priestley v. (b) 11 East, 21. Dower. Who intitled to it. Feme-alien ral intitled to dower. Court of Chancery, which would be a compliance with the marriage act; and then the marriage might be performed under a licence with the consent of such guardian. If the wife be an alien, she will be excluded from not in gene- dower, except she be Queen-consort or be married by licence of the king; for by policy of law no alien is Exceptions. capable of holding lands (a):-Thus, if a man marry an alien and then dispose of his lands, and his wife is made a denizen and her husband dies, she will not be intitled to dower out of the estate sold; because denization has no retrospect, and her capacity to be endowed originated in the circumstance of denization alone. The law would have been otherwise if the wife had been naturalised, for naturalisation unqualified has reference to the day of the party's birth, and places him or her in most respects in the same state as if actually born within the king's allegiance (b). But by a special act of Parliament, not printed, it is provided, that thenceforth all women-aliens, who should be married by licence of the king, should be intitled to dower in the same manner as English women (c). The widow must be of the age of nine years at her husband's death, or she will not be intitled to dower. The reason assigned is, quia junior non potest dotem promereri, neque virum sustinere (d), and therefore cannot have an heir who may inherit the estate but this doctrine of nonage is applicable to the wife only; for although the husband be under (a) 2 Black. Comm. 131. (b) Co. Litt. 33, and see chap. 1. (d) Litt. sect. 36. sect. 1. (c) Co. Litt. 31 b, note 9. DOWER. Of what es the age of nine years at his death, his wife having then attained that age, shall be endowed (a). It is not necessary that the woman should be nine years tates, &c. old at the time of marriage; for if she were then of the age of seven years only, and survived nine at the husband's death, she would be intitled to dower, the law supposing her capable from that period of having heritable issue. Accordingly, if A marry B, of the age of seven years, and alien his lands of inheritance, and B arrives at her ninth year, and then her husband dies, she will be intitled to dower of the lands aliened (b). As the wife will be intitled to dower at so early an age as nine years, so she will be intitled to dower however far advanced in years she may be at the time of her marriage, because the law cannot fix upon the precise period when her capability of having issue determines. Sir Edward Coke mentions an instance of a woman having a child after she attained her sixtieth year (c). II. Of what estates and interests. 1. It has been observed that the widow is intitled by the common law to be endowed of a third part of all the freehold lands and tenements of which her husband was solely seised in fee simple or fee tail at any time during the coverture, and to which any issue she might have had might by possibility have been heir (d). Accordingly, dower may be claimed out of all corporeal hereditaments, and out of all incorporeal he (a) Co. Litt. 33. (b) Co. Litt. 33. and b. 1 Roll. Abr. 675, pl. 10. Litt. sect. 36-53. Perk. sect. 301. (c) Co. Litt. 40 a (d) 2 Black. Comm. 131. Fitz. N. B. 147. To what estates dower attaches. |