Dower. the first wife of a tenant was intitled to freebench in all her husband's lands of which he was seised Legal joinduring the coverture. The husband in the present tures in bar instance, in consideration of a marriage and marriage of. portion, covenanted with trustees to settle within two months after the marriage a part of his lands to the use of himself and his wife for their lives, with remainders over. It was declared that the lands so settled on his wife (who was an infant) should be in lieu of her customary estate. And the determination was, that she was bound by this jointure, although she was under age when it was made, and no party to the deed, and consequently excluded from her freebench. The observation which arises upon the perusal of the last case is, that the jointure not being a good one at law for the reasons before given, was a voidable act as against the infant-wife upon the death of her husband; and unless she then confirmed it, of which the report is silent, the principle of the decision does not appear. The second case before alluded to is Williams v. Chitty (a). There A and B being each possessed of a leasehold house, by settlement made before their marriage, assigned both of the houses to trustees, in trust for A for life, and from his death in trust for B his intended wife for life, and then an infant. By the same deed it was declared that £1500 3 per cents. which A had purchased with his own money, and part of B's portion, and which had been transferred to the trustees, should be in trust for A and B during their lives, and the life of the survivor, &c. (a) 3 Ves. 545–551. Dower. Legal jointures in bar of. and it was also declared that the provision made for B should be in full of her jointure, and in bar of dower. A died seised of estates of inheritance of the annual value of £1000 and upwards, and the yearly amount of the jointure was £152. B claimed her dower and freebench upon the principle that she was not bound by her jointure, since she was under the disability of infancy when it was made. The Master to whom the cause stood referred, thought and reported differently, and upon evidence of reputation he stated that B was an infant at the time of her marriage. And Lord Rosslyn thought that the evidence was sufficient to prove the infancy, and disallowed B's exception to the report, thereby decreeing that she was barred by the jointure. Similar to Jordan v. Savage, the last case is not a legal jointure, either within the provisions of the statute or the case of Drury v. Drury; so that the question between the widow and the persons intitled to her husband's real estates was to be decided according to the general law prevailing on the subject before the passing of the act. No rule or maxim was more thoroughly understood, than that an infant is unable by contract or consent, to part with his or her real estates, or any beneficial interest in them, and the exceptions which have been attempted to be made prove the generality of the rule. The act of the infant was at the least voidable (a). Hence it follows, that except by a special legislative authority, no woman under age can absolutely bind herself by a (a) Inter alios, see the cases of Holt v. Clarencieux, 2 Stra. 937. Zouch v. Parsons, 3 Burr. 1794. Perk. sect. 12. Co. Litt. 45, b. 171, 8. Dower. Equitable jointures in contract or agreement to part with her freehold estate And it would seem that the 'competency of the join ture will not deprive the of her hus From dicta in some cases, it has been inferred that jointures in equity upon infants, although not within the statute, would be binding if such provisions were competent (a). But what shall or shall not be so considered, is so vague and uncertain as, it would seem, infant of her right to to afford no sufficient data to induce a Court of waive it at equity to interpose and compel a person to abandon the decease a legal ascertained right, in consideration of a pro- band. vision at the time deemed to be competent, but which may happen in the result to prove far below the value of the legal title in lieu of which it was substituted, as seems to have happened in the above case of Williams v. Chitty. The inconvenience that would attend this doctrine appears to have presented itself to the mind of Lord Thurlow in Durnford v. Lane (b), when he said, he thought that the Court should not go into the competence of the settlement. And this case appears to have been approved of by Lord Eldon, in Milner v. Lord Harewood (c). II. The next subject for consideration is, what Equitable jointures. will be a binding jointure upon the wife in a Court of equity? It may be generally observed upon this question, that, as at law, the provision will be obligatory when it is made before marriage, if the woman (a) 2 P. Will. 244. Hervey v. Ashley, 3 Atk. 612. C. C. 116. (c) 18 Ves. 275. (b) 1 Bro. Dower. Equitable jointures in bar of. Good if made before marriage with wife's consent, al though they be of age; so it will be in equity. And that, as at law, the jointure will not be binding when it is made after the marriage, neither will it be so in equity; but its validity will depend upon the widow's acceptance or refusal of it after her husband's death. It may be convenient, in treating upon this subject, to revert to the requisites for a good legal jointure before mentioned, and then show in what particulars equity differs or varies from the law in these respects; the reader not forgetting that the authority of Courts of law for admitting collateral provisions in bar to the right of dower, is founded upon a special statute, and that the jurisdiction of Courts of equity, in these matters, existed before that act, upon the principle of enforcing agreements entered into between individuals. The first requisite which, as before noticed, is necessary to a binding legal jointure is, that it be made to commence in possession or profit immediately from the husband's death (a). With this be not made agrees the rule in equity, except the intended wife to begin from hus- be a party to the deed, and by executing it consent band's death. to accept a more uncertain and disadvantageous provision in lieu of dower, for then she will be bound and absolutely barred of her common law right. Accordingly, Lord Alvanley, adverting to this subject, in Caruthers v. Caruthers (b), said, "that if the wife had been adult she might have taken a chance in satisfaction for her dower, acting with her eyes open." With respect to the legal requisite, that the estate limited in jointure be such an estate of freehold, as (a) Supra, p. 459. (6) 4 Bro. 513. Ed. by Belt. DOWER. Equitable jointures in bar of. should continue during the wife's life, except it determine sooner by her own default (a), no such circumstance will be necessary in equity in order to make the jointure an absolute bar to dower, if the intended wife be of age and a party to the deed; because she, being able to settle and dispose of all her rights, is competent to extinguish her title to dower upon any terms to which she may think proper to agree. Upon which agreement it is that a Court of equity acts and binds her; so that if she accept of a term for years, or an annuity, or copy- As of a term hold lands, &c. in lieu of her dower, she will be confor years, &c. cluded, and barred of her common law right (b). And, in truth, the inconveniences which attend a limitation of lands in jointure are so numerous, that it has been the general practice for a long time past to limit or grant a rent-charge to the intended wife during her life, to begin at her husband's death, with powers of distress and entry, secured also by a term of years (c). Usual me thod of settling join tures. made before The jointure will be equally good and binding If the joinupon the husband and wife, and bar her of dower, ture rest in covenant or if it be not absolutely and completely settled upon articles it is her by deed, but rest merely in covenant or articles binding if before the marriage, because a Court of equity will marriage. decree a specific performance of such a covenant or articles, by directing a settlement which will have rélation to the period when it ought to have been made (d). (a) Supra, p. 462. (6) Charles v. Andrews, 9 Mod. 152. (c) See the form of such a deed, in Append. No. (9) Vol. 2. (d) 3 P. Will. 269. VOL. I. I I |