587 CHAPTER XII. THE WIFE'S POWER OVER HER HUSBAND'S REAL ESTATES. IN preceding parts of the treatise references have been made to this chapter in regard to the provisions which the law has made against wrongful alienations by widows of interests acquired by them in their husband's real estates, either by operation of law or by gifts or settlements from their husbands; and the discontinuance of the wife's estate by the husband, and the remedies provided against it, having been detailed in a former chapter (a), the subject now necessary to be considered is the DISCONTINUANCE of the husband's estate by the wife after his death, and which it is proposed to treat of under the following sections and subdivisions: I. Of the alienations by dowresses and jointresses, whose interests are for life only, and the remedies provided against their tortious conveyances. II. Of the alienations by jointresses whose provisions were given or settled upon them in tail, and the remedies provided against their discontinu (a) Chap. ii. p. 54, et seq. DISCONTI NUANCE OF Effect at common law ances; and particularly by statute 11 Henry 7, chap. 20, and it is proposed in commenting upon that statute to consider— 1. What estates and interests come within its provisions. 2. What estates and interests are not within its provisions. 3. What alienations by widows are and are not forfeitures, and, 4. Of entries under the statute, and when such rights are destroyed. III. Of the effect of the statute upon the practice of Courts of Equity in decreeing a specific performance of marriage articles. I. As to the alienations by dowresses and jointresses whose interests are for life only, and the remedies provided against their tortious conveyances. If a dowress or a jointress, tenant for life, aliened the estate by a conveyance at common law for the or a jointress life of the alienee, or in tail, or in fee, it was a forfor life alien of dowress tail, or for the life of with war ranty. ing in fee, in feiture of her estate; and her heir might have entered upon the lands and defeated the title of the the alienee, alienee; but if the widow or jointress had annexed a warranty to the conveyance, and the heir omitted to enter during the widow's life, the title of the alienee would have been complete, for the warranty of the heir's ancestor descending upon him was an estoppel to his claiming the estate in consequence of the legal presumption arising from his neglect to enter upon the alienee during the life of the widow or jointress, that he, the heir, had received an equivalent in value for the lands; that presumption, therefore, which was not allowed to be repelled by contrary evidence, precluded the heir from reco- DISCONTIvering the estate itself (a). NUANCE OF HUSBAND'S c. 3. This legal fiction being attended with great in- ESTATE. justice to the heir, the legislature first began to apply Legislative a remedy in the instance of such alienations by remedies. tenants by the curtesy; and the statute of Glou- 6 Edw. I. cester (b) was passed, by which it was enacted, "that if a man aliened a tenement which he held by the law of England, his son should not be barred by the deed of the father (from whom no heritage descended) to demand and recover by writ of mort d'ancestor of the seisin of the mother, although the deed of his father doth mention that he and his heirs be bound to warranty." But this statute bound the heir if he had at any time assets from his father; and it declared that the heir of the wife should not be barred of his action after the death of his father and mother by the deed of his father, if he demanded by action the inheritance of his mother, in a writ of entry, which his father aliened in the time of the mother, whereof no fine was levied in the King's Courts. It would seem, therefore, that the fine or recovery of tenant by the curtesy was not provided against by the above act. That statute having in some measure relieved the heir from the alienations of his father tenant by the curtesy of the mother's estate, it was immediately followed by another act (c) to preserve the husband's 6 Edw. I. estate for his heir, or the person in reversion, against the disposition of it by the widow holding it in dower. By that statute it is declared, "that if a woman sell (a) Co. Litt. 365 b, 367 b. Vaug. Rep. 391. (b) 6 Edw. I. chap. 3. (c) 6 Edw. I. chap. 7. c. 7. NUANCE OF ESTATE. DISCONTI- or give in fee or for term of life the lands that she HUSBAND'S holds in dower, the heir or other person to whom the land ought to revert after the death of such woman, shall have present recovery to demand the land by a writ of entry made thereof in Chancery." The two last statutes appear to have been made solely for the benefit of the heir and the person in reversion, but the next statute which was passed, 11 Hen. VII. viz. the eleventh of Henry the seventh (a), seems c. 20. 4 Anne, c. 16, s. 21. to have extended its provisions not only to the heir, but to the persons to whom the lands in jointure within that act (b) should belong after the widow's death (c). It also includes tenants in dower, and tenants for life ex provisione viri (the latter of whom were not comprised in the other statutes before mentioned) and it gives rights of entry to the persons beneficially interested in the estate. Its clauses are particularly framed so as to remove the effects of the widow's discontinuance of her husband's estate, as will afterwards appear when the statute is considered in detail. The last statute applicable to the present subject is the fourth of Anne (d), which declares, "that all warranties that shall be made after the first day of Trinity term by any tenant for life of any lands, tenements, or hereditaments, the same descending or coming to any person in reversion or remainder, shall be void." The effects of these several statutes seem to be, to exclude the bar created by the warranty at common law, leaving to the persons intitled to the estate (a) Chap. 20. (b) See infra, p. 606. 1 Leon. 262. Cro. Eliz. 514. 3 Rep. 51 b. (c) Co. Litt. 326 b. (d) Chap. 16, sect. 21. subject to dower or curtesy, or the widow's jointure Discontifor life, the same right of entry as they would have had if no such warranty had existed. NUANCE Or II. We shall next proceed to treat of the aliena- Stat.11 Hen. tions by jointresses whose provisions were given or VII. settled upon them in tail, and the remedies provided against their discontinuances, and particularly by stat. 11 Henry 7, chap. 20, before referred to. It must be remarked that what has been previously said applies only to tortious alienations by dowresses, tenants by the curtesy, and jointresses for life. In cases where the widow was seised of an estate tail ex provisione viri, she, as any other tenant in tail, might, previously to the statute of Henry the seventh, have barred the issue by a fine; and not only the issue, but the persons in remainder or reversion, by a common recovery. In order to prevent such alienations, and to preserve for the issue of the marriage the provisions intended for them, as also to continue the estate in the family of the husband, from whom it proceeded, and by whom it was settled, it seems that the legislature, taking as a pattern the statute de donis conditionalibus (a), passed the act of the eleventh of Henry the seventh (b), which pro- 11 Hen. 7, vides and declares "that any woman who had or That act deshould have any estate in dower, or for life, or in tail clares that jointly with her husband, or only to herself, or to her disconuse, in any manors, lands, tenements, or other here- fraudulent ditaments of the inheritance or purchase of her husband, or given to the husband and wife, in tail or for life, by any of the ancestors of the husband, or by seised to the use of the husband, any other person c. 20. tinuances or recoveries by dowresses or jointresses ex provisione virorum shall be void, |