as to render it doubtful, whether it will be relaxed in the most distressing cases (a); yet I have found no case to that effect, no authority pronouncing that a widow under no circumstances shall receive interest upon the money arising from her dower, improperly detained from her by the person who ought to have assigned it. If such were the rule in equity, the widow would be in a worse situation in that Court than if she had brought her writ of dower at law; for we have seen that a jury in assessing damages pro detensione dotis are at liberty to give her more than one-third of the by-gone annual value of the estate, if she have suffered injury to a larger amount in consequence of the non-assignment of her dower (b). Now one species of damage the widow might suffer may arise from the payment of interest upon money borrowed for maintenance whilst contending for her right to dower; this payment of interest, it is presumed, would be an injury which a jury would feel no difficulty in considering in their estimate of damages for the detention of dower; and it would seem singular if a Court of Equity, professing to favour the widow's claims, and upon that principle to extend to her relief even beyond what she could obtain at law (c), should refuse to give her the same relief which she might have had in a Court of common law. But it may be said that a Court of Equity declines to give interest in this instance in analogy (a) See Ferrers v. Ferrers, Forest. 2. Batten v. Earnley, 2 P. Will. 163. Robinson v. Cumming, 2 Atk. 411. Newman v. Auling, 3 Atk. 579. Bedford v. Coke, cited 2 Ves. jun. 166. Lindsay v. Gibbon, cited 3 Bro. C. C. 495. (b) Supra, p. 435. 1 Leon. 56. (c) 2 Bro. C. C. 629. Dower. to its practice in refusing interest upon arrears of annuities, and of such even, as are granted by way Remedy for, of jointure in bar of dower. The analogy, however, in equity. does not seem to be applicable in this instance, because these annuities are created by express contract among the parties in solemn instruments, and they might, if they thought proper, have provided for the payment of interest upon the arrears of the annuities granted, to which transactions the observation of Lord Thurlow in Tew v. the Earl of Winterton (a) applies, viz. "that the Court has never given interest but where there has been some ground from whence it could gather that there was a contract between the parties that interest should be paid." This remark can only apply to instances where there is a possibility of such a contract being made; or to cases where annuities are given by deed or will, in which provision might be made for payment of interest upon arrears (b), and not to a case like the present, where the widow's title is created by law; moreover it could not mean, that in such a case the deforceor of the widow's dower should be in a better condition in equity than at law, as he would be, as it has been before shown, if the interest paid by the widow for money borrowed to support her till she obtained her dower, should not be repaid her in equity in the shape of interest upon the arrears due in respect of such dower. The cases in which interest has been refused were chiefly of annuities, for the payment of interest upon the arrears of which provision might have been made. And even in these (a) 3 Bro. C. C. 495.* (b) Mellish v. Mellish, 14 Ves. 516. DOWER, Remedy for, in equity. instances Lord Hardwicke expressed an opinion in an anonymous case reported by the elder Vesey (a), that "interest upon arrears might be given in a special case, as the being obliged to borrow money and to pay interest for it, and then, said his Lordship, the Court will give interest from a reasonable time." Upon the whole it is submitted as a reasonable presumption, and as being in analogy to law and not inconsistent with the decisions in equity, that interest will not be given upon arrears of dower except under special circumstances, one of which is where the widow has been under the necessity of taking up money at interest for her maintenance whilst her dower was withholden. (a) 2 Ves. sen. 662. CHAPTER X. ON THE PREVENTION OF DOWER BY JOINTURES. HAVING in the last chapter traced the widow's title to dower through its various stages until she clothed it with possession through the medium of a Court of Law or a Court of Equity; the only subjects which remain for consideration are, how that right may be prevented from ever attaching, and how it may be barred or forfeited when the title once commences. These matters will be treated upon in this and the two following chapters, confining the consideration of the law of jointures, as being the methods most usually adopted for preventing dower, to the present chapter, the subjects of which will be considered under the following sections: I. Legal jointures. II. Equitable jointures. III. The jurisdiction of Courts of Equity in assisting and relieving jointresses. Under which section are considered, 1. Contracts and covenants to settle jointures. 2. Jointures made under powers. IV. The performance and satisfaction of covenants to make jointures. 1. Of the performance of such covenants. DowER. Legal jointures in bar of Jointures under the statute of V. The wife's interest in her estate in jointure, and the incidents, privileges, and powers belonging to it. 1. As to her interest. 2. Of her absolute alienation of her jointure with her husband, or merely to secure his debts, and 3. Of the bar or forfeiture of her jointure. I. Legal jointures. The rule of the common law, that the widow's acceptance of a collateral satisfaction of, or out of lands. Henry VIII. in which she was not dowable, was no bar to her title to dower in those to which that title attached (a), united with the inconvenience that would have ensued after the passing of the statute of uses (b), induced the legislature by that act to enable the husband to bar effectually his wife's right to dower, by making a provision for her before marriage in lieu of it, and which is known by the name of her jointure. What the inconvenience would have been if it had not been obviated, the reader will understand from the following observations: At the period of passing the statute, the greatest part of the lands in England was vested in feoffees to uses. Now since a widow was not intitled to dower of an use, her father or friends, upon her marriage, procured a settlement to be made of some particular lands of the intended husband to his and wife's use, joint-tenancy for their lives, as a provision for her in the event of her surviving him. But the statute (a) See last chapter, sect. 3, p. 399. c. 10, sect. 6. in (b) 27 Hen. VIII. |