before mentioned, and intended to give the husband a clear dominion over the property he purchases, free from future claim of his wife; these forms being so managed as to vest in him the effective ownership, but not precisely such an estate as by the rules of law would be subject to dower. While various methods have thus for a long time past existed, in which the widow's right was capable of being effectually barred, it was nevertheless up to a late period of our legal history, secure (if not barred) from liability to be defeated by any alienation that the husband might think fit to make of his estate; her title always remaining paramount to that of the alienee (n). And while dower retained its original importance, no just objection could be made to this principle, for though it operated as a clog on the transfer of property, it was evidently essential to the full protection of the widow's right. But at the period to which we refer, that right had long sunk into comparative insignificance, owing first to the facility with which it was capable of being barred, secondly, to the great increase in modern times of personal property (out of which the husband might make ample provision for the wife by way of testamentary disposition, and of which, if he died intestate, she became entitled to her share,) and lastly, to the effect of the Statute of Wills, which, by making real property devisable, empowered him to provide for her out of the real estate, by will. Under these circumstances there appeared to be no sufficient reason for continuing the inconvenient restraint which the law of dower tended to impose on the husband's alienation; and by the statute 3 & 4 Will. IV. c. 105, it is consequently provided that all dispositions which he may make of his land (whether absolute or partial, and whether by conveyance in his lifetime, or by will,) and all debts and incumbrances to which it may be subject, shall be deemed to be valid and effectual, as against his widow's (n) Co. Litt. 32 a. right to dower. The same act also gives still greater facilities than before existed, for the barring of dower, which it allows to be effected by a simple declaration for that purpose, introduced into the deed by which the land is conveyed to the husband, or into any deed executed by him, or into his last will and testament. And it is farther enacted, that where the husband devises for his wife's benefit any part of his land that had been subject to her dower, she shall be thereby excluded from her claim of dower, unless a contrary intention is declared by the will; though it is otherwise as to a bequest of personalty, or of land on which her claim would not attach; for in the absence of a declaration to the contrary, that shall not be sufficient to exclude her title as dowress (o). It is to be observed, however, that none of the provisions of this act apply to the case of women married on or before 1st January, 1834; and that as to these the former law consequently remains in its full force. [It is curious to observe the several revolutions which the doctrine of dower has undergone since its introduction into England. The wife's claim seems first to have extended to a moiety of the husband's lands, but forfeitable by incontinency or a second marriage, and such is still the case where the tenure is in gavelkind. By the famous charter of Henry I. this condition, of widowhood and chastity, was only required in case the husband left any issue (p); and afterwards we hear no more of it. Under Henry the Second, according to Glanvil (q), the dower ad ostium ecclesia was the most usual species of dower: and here, as well as in Normandy (r), it was binding upon the wife, if by her consented to at the time of (0) Vide Chalmers v. Storil, 2 Ves. & Bea. 224; Dickson v. Robinson, Jacob, 503. (p) Si mortuo viro uxor ejus remanserit, et sine liberis fuerit, dotem suam habebit; si vero uxor cum liberis re manserit, dotem quidem habebit, dum [marriage. Neither, in those days of feudal rigour, was the husband allowed to endow her ad ostium ecclesiæ with more than the third part of the lands whereof he then was seised, though he might endow her with less; lest by such liberal endowments the lord should be defrauded of his wardships and other feudal profits (s). But if no specific dotation was made at the church porch, then she was endowed by the common law of the third part (which was called her dos rationabilis) of such lands and tenements, as the husband was seised of at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquisitions (t); and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower (u) in lands which he afterwards acquired (x). In King John's Magna Carta, and the first charter of Henry III. (y); no mention is made of any alteration of the common law, in respect of the lands subject to dower: (s) Bract. 1. 2, c. 39, s. 6. (t) De questu suo (Glanv. ibid.) de terris acquisitis et acquirendis. (Bract. ibid.) (u) Glanv. 1. 6, c. 2. (a) When special endowments were made ad ostium ecclesia, the husband, after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife, (quod dotat eam de tali manerio cum pertinentiis, &c. Bract. ibid.) and therefore in the old York ritual (Seld. Ux. Hebr. 1. 2, c. 27,) there is at this part of the matrimonial service, the following rubric: “sacerdos interroget "dotem mulieris; et si terra ei in "dotem detur, tunc dicatur psalmus "iste, &c." When the wife was endowed generally (ubi quis uxorem suam dotaverit in generali, de omnibus terris et tenementis; Bract. ibid.) the husband seems to have said, "with all my lands and tenements I thee eadow;" and then they all became liable to her dower. When he endowed her with personalty only, he used to say, "with all my worldly goods, (or, as the Salisbury ritual "has it, with all my worldly chattel) "I thee endow;" which entitled the wife to her thirds, or pars rationabilis, of his personal estate, which is provided for by Magna Carta, c. 26, and will be farther treated of in the course of this book; though the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her husband's personalty. (y) A. D. 1216, c. 7, edit. Oxon. [but in those of 1217 and 1224, it is particularly provided, that a widow shall be entitled for her dower to the third part of all such lands as the husband had held in his lifetime (z); yet in case of a specific endowment of less ad ostium ecclesiæ, the widow had still no power to waive it after her husband's death. And this continued to be law during the reigns of Henry III. and Edward I.(a). In Henry IV.'s time it was denied to be law, that a woman can be endowed of her husband's goods and chattels (b): and under Edward IV. Littleton lays it down expressly, that a woman may be endowed ad ostium ecclesiæ with more than a third part (c): and shall have her election, after her husband's death, to accept such dower or refuse it, and betake herself to her dower at common law (d).] And now even the common law dower itself, after falling by several gradations from its original consequence, under the influence of the causes already explained, is at length by the late statute reduced to a right of the most precarious description, which the husband may bar or defeat at his pleasure; though if he fails to exercise that power, the widow is still in a condition to assert her title as against the heir. (z) Assignetur autem ei pro dote sua tertia pars totius terræ mariti sui quæ sua fuit in vita sua, nisi de minori dotata fuerit ad ostium ecclesiæ, c. 7. Ibid. (a) Bract. ubi sup.; Britton, c. 101, 102; Flet. 1. 5, c. 23, s. 11, 12. (b) P. 7 Hen. 4, 13, 14. CHAPTER V. OF ESTATES LESS THAN FREEHOLD. HAVING now investigated, in some measure, the nature of freehold estates, we arrive at the consideration of those which are less than freehold, and to which the law consequently applies the denomination of chattels real. For it is to be understood that in our law, chattel is a term used to express any kind of property which, having regard either to the subject-matter or the quantity of interest therein, is not freehold. The appellation was originally derived from the technical Latin word catalla, which among the Normans primarily signified only beasts of husbandry, or, as we still call them, cattle; but in a secondary sense was applicable to all moveables in general, and not only to these, but to whatever was not a fief or feud; to which among the Normans there were two requisites, a given degree of duration as to time, and immobility with regard to place (a). And it is in this latter more extended and negative sense that our own law adopts the term, considering as a chattel whatever amounts not to freehold; which, like the Norman fief, requires, as we have seen, immobility in respect of the subject-matter (b), and a given degree of duration, that is, a duration for a life at least (c), either absolute or determinable on contingency (d), as regards the quantity of interest or estate. Any estate in lands and tenements, which amounts not to freehold, is consequently a chattel; (a) 2 Bl. Com. 386. (b) Vide sup. p. 156. (c) Vide sup. p. 217. |