be joint. able estates of their husbands (o). The estate, more- Estate must not over, must have been held in severalty or in common, and not in joint tenancy; for, the unity of interest which characterizes a joint tenancy, forbids the intrusion into such a tenancy of the husband or wife of any deceased joint tenant; on the decease of any joint tenant, his surviving companions are already entitled, under the original gift, to the whole subject of the tenancy (p). The estate was also required to be an estate of inheritance in possession; although a seisin in law, obtained by the husband, was sufficient to cause his wife's right of dower to attach (g). In no case, also, was any issue required to be actually born; it was sufficient that the wife might have had issue, who might have inherited. The dower of the widow in gavelkind Dower of gavellands, consisted, and still consists, like the husband's kind lands. curtesy, of a moiety only, and continues only so long as she remains unmarried and chaste (r). In order to prevent this inconvenient right from attaching on newly purchased lands, and to enable the purchaser to make a title at a future time, without his wife's concurrence, various devices were resorted to in the framing of purchase-deeds. The old-fashioned method old method of of barring dower, was to take the conveyance to the pur- barring dower. chaser and his heirs, to the use of the purchaser and a trustee and the heirs of the purchaser; but, as to the estate of the trustee, it was declared to be in trust only for the purchaser and his heirs. By this means, the purchaser and the trustee became joint tenants for life of the legal estate, and the remainder of the inheritance belonged to the purchaser. If, therefore, the purchaser died during the life of his trustee, the latter acquired in law an (0) 1 Roper's Husband and Wife, 354. seq. (p) Ibid. 366; ante, p. 99, et (9) Co. Litt. 31 a. (r) Bac. Abr. tit. Gavelkind (A); Rob. Gav. book 2, c. 2. Jointure. estate for life by survivorship; and, as the husband had never been solely seised, the wife's dower never arose ; whilst the estate for life, of the trustee, was subject in equity to any disposition which the husband might think fit to make by his will. The husband and his trustee might also, at any time during their joint lives, make a valid conveyance to a purchaser, without the wife's concurrence. The defect of the plan was, that if the trustee happened to die during the husband's life, the latter became at once solely seised of an estate in fee simple in possession; and the wife's right to dower accordingly attached. Moreover, the husband could never make any conveyance of an estate in fee simple, without the concurrence of his trustee, so long as he lived. This plan, therefore, gave way to another method of framing purchase-deeds, which will be hereafter explained (s), and by means of which the wife's dower is effectually barred, whilst the husband alone, without the concurrence of any other person, can effectually convey the lands. The right of dower might have been barred altogether by a jointure, agreed to be accepted by the intended wife, previously to marriage, in lieu of dower. This jointure was either legal or equitable. A legal jointure was first authorized by the Statute of Uses (t), which, by turning uses into legal estates, of course rendered them liable to dower. Under the provisions of this statute, dower may be barred by the wife's accceptance, previously to marriage, and in satisfaction of her dower, of a competent livelihood of freehold lands and tenements, to take effect in profit or possession presently after the death of the husband, for the life of the wife at least (u). If the jointure be made after marriage, the wife may elect be (s) See post, the chapter on Executory Interests. 5, (t) 27 Hen. VIII. c. 16. (u) Co. Litt. 36 b; 2 Black. Com. 137; 1 Roper's Husband and Wife, 462. ture. tween her dower and her jointure (v). A legal jointure, however, has, in modern times, seldom been resorted to as a method of barring dower; when any jointure has been made, it has usually been merely of an equitable kind; for, if the intended wife be of age, and a party to the settlement, she is competent, in equity, to extinguish Equitable joinher title to dower upon any terms to which she may think proper to agree (x). And if the wife should have accepted an equitable jointure, the Court of Chancery will effectually restrain her from setting up any claim to her dower. But in equity, as well as at law, the jointure, in order to be in absolute bar of dower, must be made before marriage. With regard to women married since the 1st of Ja- Dower under nuary, 1834, the doctrine of jointures is of very little the recent act. moment. For, by the recent act for the amendment of the law relating to dower (y), the dower of such women has been placed completely within the power of their husbands. Under the act, no widow is entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will (2). And all partial estates and interests, and all charges created by any disposition or will of the husband, and all debts, incumbrances, contracts, and engagements, to which his lands may be liable, shall be effectual as against the right of his widow to dower(a). The husband may also, either wholly or partially, deprive his wife of her right to dower by any declaration for that purpose made by him, by any deed, or by his will (b). As some small compensation for these sacrifices, the act has granted a right of dower out of lands to which the husband had a right merely, without hav Declaration ing had even a legal seisin (c); dower is also extended to equitable as well as legal estates of inheritance in possession, excepting of course estates in joint-tenancy (d). The effect of the act is evidently to deprive the wife of her dower, except as against her husband's heir at law. If the husband should die intestate, and possessed of any lands, the wife's dower out of such lands is still left her for her support, unless, indeed, the husband should have executed a declaration to the contrary. A against dower. declaration of this kind has, unfortunately, found its way, as a sort of common form, into many purchase deeds. Its insertion seems to have arisen from a remembrance of the troublesome nature of dower under the old law, united possibly with some misapprehension of the effect of the new enactment. But, surely, if the estate be allowed to descend, the claim of the wife is at least equal to that of the heir, supposing him a descendant of the husband; and far superior, if the heir be a lineal ancestor, or remote relation (e). The proper method seems therefore to be, to omit any such declaration against dower, and so to leave to the widow a prospect of sharing in the lands, in case her lord shall not think proper to dispose of them. (c) Sect. 3. (e) 2 Sugd. Ven. and Pur. 222. PART II. OF INCORPOREAL HEREDITAMENTS. OUR attention has hitherto been directed to real property of a corporeal kind. We have considered the usual estates which may be held in such property, -the mode of descent of such estates as are inheritable,the tenure by which estates in fee simple are holden,— and the usual method of the alienation of such estates, whether in the lifetime of the owner, or by his will. We have also noticed the modification in the right and manner of alienation, produced by the relation of husband and wife. Besides corporeal property, we have seen (a) that there exists also another kind of property, which, not being of a visible and tangible nature, is denominated incorporeal. This kind of property, though Incorporeal it may accompany that which is corporeal, yet does not property. in itself admit of actual delivery. When, therefore, it was required to be transferred as a separate subject of property, it was always conveyed, in ancient times, by writing, that is, by deed; for we have seen (b), that formerly all legal writings were in fact deeds. Property of an incorporeal kind was, therefore, said to lie in grant, Lies in grant. whilst corporeal property was said to lie in livery (c). For, the word grant, though it comprehends all kinds of conveyances, yet, more strictly and properly taken, is a conveyance by deed only (d). And livery, as we we`} have seen (e), is the technical name for that delivery, which was made of the seisin, or feudal possession, on every feoffment of lands and houses, or corporeal here (a) Ante, p. 10. (d) Shep. Touch. 228. ว N |