thereof to the lord, and the widow is immediate tenant to the heir, by a kind of fubinfeudation, or under-tenancy, completed by this inveftiture or affignment; which tenure may still be created, notwithstanding the statute of quia emptores, because the heir parts not with the fee-fimple, but only with an estate for life. If the heir or his guardian do not affign her dower within the term of quarentine, or do affign it unfairly, she has her remedy at law, and the sheriff is appointed to affign it . Or if the heir (being under age) or his guardian affign more than fhe ought to have, it may be afterwards remedied by writ of admeasurement of dower". If the thing of which fhe is endowed be divifible, her dower must be set out by metes and bounds; but if it be indivifible, she must be endowed fpecially; as of the third prefentation to a church, the third toll-dish of a mill, the third part of the profits of an office, the third fheaf of tithe, and the like ". UPON preconcerted marriages, and in eftates of confiderable confequence, tenancy in dower happens very feldom: for, the claim of the wife to her dower at the common law diffufing itself fo extenfively, it became a great clog to alienations, and was otherwife inconvenient to families. Wherefore, fince the alteration of the antient law refpecting dower ad oftium ecclefiae, which hath occafioned the entire difufe of that species of dower, jointures have been introduced in their stead, as a bar to the claim at common law. Which leads me to inquire, lastly, 4. How dower may be barred or prevented. A widow may be barred of her dower not only by elopement, divorce, being an alien, the treafon of her husband, and other difabilities before-mentioned, but alfo by detaining the title deeds, or evidences of the estate from the heir, until she reftores them: and, by the ftatute of Glocefter, if a dowager alienes the land affigned her for dower fhe forfeits it ipfa e Co. Litt. 34, 35. d F. N. B. 148. Finch. L. 314. Stat. Weftm. 2. 13 Edw. I. c. 7. e Co. Litt. 32. f Ibid. 39. g 6 Edw. 1. c. 7. facto, facto, and the heir may recover it by action. A woman alfo may be barred of her dower, by levying a fine, or suffering a of the lands, during her coverture. But the most ufual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10. recovery. A JOINTURE, which, ftrictly speaking, fignifies a joint eftate, limited to both husband and wife, but in common acceptation extends alfo to a fole estate, limited to the wife only, is thus defined by fir Edward Coke 1; "a competent "livelihood of freehold for the wife, of lands and tene❝ments; to take effect, in profit or poffeffion, presently after "the death of the hufband; for the life of the wife at leaft." This description is framed from the purview of the statute 27 Hen. VIII. c. 10. before-mentioned; commonly called the statute of uses, of which we shall speak fully hereafter. At present I have only to obferve, that before the making of that ftatute, the greateft part of the land of England was conveyed to uses; the property or possession of the foil being vested in one man, and the use, or profits thereof, in another; whofe directions, with regard to the disposition thereof, the former was in confcience obliged to follow, and might be compelled by a court of equity to obferve.. Now, though a husband had the use of lands in abfolute fee-fimple, yet the wife was not entitled to any dower therein; he not being feifed thereof: wherefore it became ufual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives, in joint-tenancy, or jointure; which fettlement would be a provifion for the wife in cafe fhe furvived her husband. At length the ftatute of uses ordained, that fuch as had the ufe of lands, fhould, to all intents and purposes, be reputed and taken to be abfolutely feifed and poffeffed of the foil itself. In confequence of which legal feifin, all wives would have become dowable of fuch lands as were held to the use of their husbands, and also entitled at the fame time to any special lands that might be fettled in jointure: had not the fame ftatute provided, that upon making fuch an estate in jointure to the wife before marriage, the fhall be for ever precluded from her dower *, b Pig. of recov. 66. i 1 Inft. 36. k 4 Rep. 1, 2. But But then thefe, four requifites must be punctually observed, 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur auter vie, or for any term of years, or other smaller eftate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and fo in the deed particularly expressed to be (a), in fatisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower ad oftium ecclefiae, and may either accept it, or refuse it and betake herself to her dower at common law; for The was not capable of confenting to it during coverture. And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of poffeffion, the fhall then (by the provifions of the fame ftatute) have her dower pro tanto at the common law'. THERE are fome advantages attending tenants in dower that do not extent to jointreffes; and fo vice verfa, jointreffes are in fome refpects more privileged than tenants in dower. Tenant in dower by the old common law is fubject to no tolls or taxes; and hers is almost the only eftate on which, when 1 Thefe fettlements, previous to marriage, feem to have been in ufe among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. "Dotem non uxor marito, fed uxori maritus affert: "interfunt parentes et propinqui, et mune"ra probant." (de mor. Germ. c. 18.) And Cæfar (de bello Gallico, 1. 6. c. 18.) has given us the terms of a marriage fettlement among the Gauls, as nicely calculated as any modern jointure. "Viri, quantas pecunias ab uxoribus do"tis nomine acceperunt, tantas ex fuis bo "nis, aeftimatione fa&ta, cum dotibus com"municant. Hujus omnis pecuniae con"junctim ratio babetur, fructufque fer"vantur. Uter eorum vita fuperavit, "ad eum pars utriufque cum fructibus "fuperiorum temporum pervenit." The dauphin's commentator on Cæfar fuppofes that this Gaulish custom was the ground of the new regulations made by Juftinian (Nov. 97.) with regard to the provifion for widows among the Romans: but furely there is as much reafon to fuppofe, that it gave the hint for our ftatutable jointures. (a) Or it may be averred to be, Co. Lit. 36. b. 4 Rep. 3. An affurance was made to a woman, to the intent it fhould be for her jointure, but it was not fo expreffed in the deed. And the opinion of the court was, that it might be averred that it was for a jointure, and that fuch averment was traverfable. Owen, 33. derived from the king's debtor, the king cannot distrein for his debt; if contracted during the coverture". But, on the other hand, a widow may enter at once, without any formal procefs, on her jointure land; as she also might have done on dower ad oftium ecclefiae, which a jointure in many points refembles; and the resemblance was ftill greater, while that fpecies of dower continued in it's primitive state: whereas no fmall trouble, and a very tedious method of proceeding, is neceffary to compel a legal affignment of dower ". And, what is more, though dower be forfeited by the treason of the husband, yet lands fettled in jointure remain unimpeached to the widow. Wherefore fir Edward Coke very justly gives it the preference, as being more fure and safe to the widow, than even dower ad oftium ecclefiae, the most eligible fpecies of any. Co. Litt. 31. a. F. N. B. 150. n Co. Litt. 36. • Ibid. 374 CHAPTER THE NINTH. OF ESTATES LESS THAN FREEHOLD. OF F eftates that are lefs than freehold, there are three forts: 1. Eftates for years: 2. Eftates at will: 3. Estates by fufferance. I. AN eftate for years is a contract for the poffeffion of lands or tenements, for some determinate period: and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the leffor and the leffee, and the leffee enters thereon ". If the leafe be but for half a year, or a quarter, or any less time, this leflee is respected as a tenant for years, and is stiled fo in some legal proceedings; a year being the shortest term which the law in this cafe takes notice of. And this may, not improperly, lead us into a fhort digreffion, concerning the division and calculation of time by the English law. THE fpace of a year is a determinate and well-known period, confifting commonly of 365 days: for, though in a We may here remark, once for all, that the terminations of "or" and "ee" obtain, in law, the one an active, the other a paffive fignification; the former ufually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the feoffee is he to whom it is made: the donor is one that giveth lands in tail; the donee is he who receiveth it he that granteth a leafe is denominated the lesfor; and he to whom (Litt. §. 57-) it is granted the leffee. c Ibid. 67. biffextile |