Dower. Seisin of husband. Contra, if the exchange be completed by conveyance under the statute of uses. But the reader will notice, that if this exchange had been made by lease and release under the statute of uses (a), which transfers the legal seisin and possession to the use, the entry of B would have been unnecessary, and in that case his widow would have been intitled to dower. Again, If a person enfeoff another upon a condition to be performed on the feoffee's part, and afterwards marry, and then the condition is broken, but the feoffor entry for the dies before entry, his wife will not be intitled to dower (b). Also non breach of a condition will prevent dower, or non-entry under a pro fore mar So also if a man bargain and sell lands to another person and his heirs, with a proviso that if a particular act were done the bargain and sale shall viso in a con- be void; and afterwards the bargainor marries, and veyance by husband be- then the condition is broken, but before entry for the breach the bargainor dies; his widow will not be intitled to dower (c); because for want of reentry by the bargainor, the estate of the bargainee was not devested, so that at no time during the marriage the bargainor was seised of the inheritance in the premises. riage, determining the estate, except upon the proviso not being complied with, the estate was limited to the use of husband in fee. Dower will not arise upon a mere right of action in the husband during the marriage. It is conceived, however, that if it had been declared that upon a breach of the condition the bargain and sale should be to the use of the bargainor and his heirs, then that by virtue of the statute of uses, he would have been seised of the fee without an entry, and his widow in consequence intitled to endowment. 13. The same principle which prevents a title to dower upon a mere right of entry in the husband during the coverture, will equally prevent that title (a) 27 Hen. 8. chap. 10. (b) Perk. sect. 368. (c) 6 Rep. 34. arising, when the husband during that period has only a right of action to recover his estate. Dower. Seisin of hus when dis Suppose, then, a man to be disseised, and the dis- band. seisor (after being in peaceable possession of the estate for five years (a)) to die seised, upon which Instance the lands descend to his heir; the entry of the seisee's endisseisee would be tolled or taken away. Also sup- after a distry is tolled pose the disseisee to marry, and then to die, his seisin; widow will not be intitled to dower, since there was no seisin in the husband during the coverture, but a right of action only. So also if the husband had commenced an action and although he recover execution against the heir of the disseisor, but after recovering judgment, if judgment, died before execution, his widow would he die before not be dowable, because her husband was not during the marriage seised, either in fact or in law, of the inheritance of the lands (b). 14. The same reasoning applies where the husband's title to seisin of the inheritance depends upon a defective instrument or conveyance. his widow will not be dowable. Nor will when the dower arise husband's title depends upon a void Accordingly, if the husband's title to the estate depend upon a bargain and sale, (which, by the sta- conveyance. tute of Henry the eighth (c), must be enrolled within Instance-a six months after its date), and he die before the en- bargain and rolment, but after the expiration of the six months, want of enhis widow will not be intitled to dower (d), because rolment. the bargain and sale was void, and consequently there was no seisin in the husband. The reverse, however, would be the case if the husband had died within the six months, and the bargain and sale had been enrolled within that sale void for (b) Perk. sect. 370. (d) Dimmock's case, Ow. 149. (a) See stat. 32 Hen. 8, c. 33. (c) 27 Hen. 8. chap. 16. DOWER. Seisin of hus band. Widow may elect be tween two period; for the enrolment has relation to the date of the bargain and sale, so that the husband in his lifetime was seised of an estate of inheritance (a). 15. It may happen, that the husband becomes seised of the same estate at two or more distinct seisins of her periods during the marriage. In these instances, the widow is at liberty to elect of which seisin she will be endowed. husband of the same estate. And she will be dowable of the se cond seisin, if she be barred of the first by her fine. Thus, if the husband were seised in fee, and conveyed away the estate, and then took it back again in fee or in tail, his widow may elect whether she will be endowed upon the first or second seisin (b); the exercise of which right may be of much consequence to her, as will appear when the effects of assignments of dower are afterwards considered. And if the widow preclude herself of this right of election, by joining in a fine with her husband, and he take back the same estate in fee or in tail, she will be entitled to dower of this second seisin (c). With respect to the issue, in relation to the widow's title to dower, the birth of any is not required, as we have seen that it is in order to found a right to as to dower. curtesy. But the issue which might have been born, must be such as by possibility might have inherited the estate. Of the issue If, therefore, a man seised of lands in fee-simple have a son by his first wife, and after her death marry a second, she will be intitled to dower of his lands, for her issue might by possibility have been heir to and inherited the estate after the son's death. So it is if the husband be seised to him and to the heirs of his body in tail general; and for the (a) See Cro. Car. 568. Co. Litt. 33. (b) Co. Litt. 33. (c) Note 5 to Dower. same reason, if the husband be donee in special tail, holding lands to him and the heirs of his body beAssignment gotten on Jane his then wife, she will be intitled to of, when to be dower, although there be no issue, by reason of the made. possibility there was of her having such as were inheritable; but if she happened to die before her husband, and he married a second wife, this wife would not be dowable of the lands in special tail, for her issue could not by any possibility inherit them per formam doni (a). III. We shall now consider, in their order, when, and by whom, and of what, and how dower is to be assigned, and the remedies for excessive assign ments. before widow can lawfully enter. Before entering upon the consideration of the above Dower must particulars, I must observe, that a widow is not in- be assigned titled to enter upon her third part of the estate until it has been duly assigned to her by the heir or other competent authority (b). This is required not only for notoriety to the public, as to the owner of the lands, to enable them to implead the tenant, but also to intitle the lord of the fee to demand the heir's services in respect of the estate so holden; for the heir by his entry becomes tenant to the lord, and the widow is immediate tenant to the heir by a kind of subinfeudation, which is completed by the assignment (c); and it is not necessary that the assignment And the asshould be by deed. signment need not be 1. The first thing to be considered is, when dower by deed. is to be assigned. (a) 2 Black. Com. 131. Litt. sect. 53. 8 Rep. 36. Cro. Jac. (b) Co. Litt. 34 b. 37. Dall. 100. (c) 2 Black. Com. 135. Perk. sect. 393. 615. When dower is to be assigned. VOL. I. CC Dower. Assignment of, by whom. Widow's Quarantine. Plea of it. The widow is intitled to be endowed immediately after her husband's death; and dower ought to be assigned to her within forty days after the happening of that event: in the mean time she is intitled at the common law, confirmed by Magna Charta (a), to remain in her husband's capital messuage or other dwelling-house, of which she is dowable, for the space of forty days, and to be supported de bonis viri (b). This title of residence is called the widow's Quarantine. But if she marry during these days, or depart from her husband's house (to which she will not be permitted to return for the remainder of the time), her right to quarantine determines. In pleading quarantine, the widow must show with certainty the period when her husband died, and the time of the forty days after (c). And if she be evicted by the heir or ter-tenant, she is intitled to Writ de qua- the writ de quarantinâ habendâ (d), the form of which rantinâ, &c. is given in Fitzherbert's Natura Brevium (e). Person assigning dower, must be seised of the freehold. Therefore not by guardian in socage, nor tenants by elegit, &c. 2. The next consideration is, by whom dower is assignable. The person by right intitled to assign dower, when a court of law is not resorted to for the purpose, is the heir, or whoever may be the owner of the freehold (f); it being settled that an assignment of dower cannot be made by any person who has not a freehold in the estate, or against whom a writ of dower does not lie. For this last reason, it is said that a guardian in socage cannot assign dower; however, tenants by elegit, by statute staple, statute merchant, (a) Chap. 7. (b) Co. Litt. 32 b. 34 b. 2 Inst. 17. Jenk. 284, pl. 16. (c) Kettillesby v. Kettillesby, Dyer. 76 b. (d) Co. (e) Page 162. (f) Co. Litt. 34 6. Litt. 34 b. |