42 
D O W E R. 
law refpecting dower ad ojlium ecclcpa, which has ocda- 
fioned the entire difufe of that fpecies of dower, join¬ 
tures have been introduced in their ftead, as a bar to the 
claim at common-law. A widow may be barred of her 
dower, not only by elopement, divorce, being an alien, 
the treafon of her hufband, and other difabilities before- 
mentioned, butalfo by detaining the title deeds, or evi¬ 
dences of the eftate from the heir, until (he reftores them. 
Though if (he denies the detainer, and it is found againft 
her, (lie lofes her dower. By the (fat. of Gloucefter, 
6 ,Edw. I. c. 7, if a dowager aliens the land afligned her 
for dower, (lie forfeits it ipfofado , and the heir may re¬ 
cover it by adtion. A woman aifo may be barred of her 
dower, by levying a fine with her hufband, or buffering 
a recovery of the lands during her coverture. Plowd. 514. 
But the mod ufual method of barring dower, is by join¬ 
tures, as regulated by the (fat. 27 Hen. VIII. c. 10. 
A jointure, which, ftridtly fpeaking, fignifies a joint- 
efiate, limited to both hufband and wife, but in common 
acceptation extends alfo to a foie eftate, limited to the 
wife only, is thus defined by Coke, 1 Injl. 36. “A com¬ 
petent livelihood of freehold for the wife, of lands and 
tenements ; to take effedt, in profit or polfeftion, prefent- 
ly after the death of the hulband ; for the life of the 
wife at leaft.” This defcription is framed from the flat. 
27 Hen. VIII. c. 10, commonly called the Jlatute of Ufcs. 
Before the making of that ftatute, the greateft part of 
the land in England was conveyed to ufes ; the property 
or poffeflion of the foil being vefted in one man, and the 
life, and profits thereof, in another; whofe diredtions, 
with regard to the difpolition thereof, the former was in 
confcience obliged to follow, and might be compelled by 
a court of equity to obferve. Now, though a hulband 
had the ufe of lands in abfolute fee-fimple, yet the wife 
W'as not entitled to any dower therein ; he not being feifed 
thereof: wherefore it became ufual, on marriage, to fet¬ 
tle by exprefs deed fome fpecial eftate to the ufe of the 
hufband and his wife, for their lives, in joint-tenancy, or 
jointure ; which fettlement would be a provifion for the 
wife, in cafe* (lie furvived her hufband. At length the 
ftatute of ufes ordained, that fuchas had the ufe of lands, 
(hould, to all intents and purpofes, be reputed and taken 
to be abfolutely feifed and pofTeffed of the foil itfelt. 
In confequence of which legal feifin, all wives would 
have become dowable of fuch lands as were held to the 
ufe of their hufbands, and alfo entitled at the fame time 
to any fpecial lands that might be fettled in jointure : had 
not the fame ftatute provided, that upon making fuch an 
eftate in jointure to the wife before marriage, (he (hall 
be for ever precluded from her dower. 4 Rep. 1. 2. But 
in this cafe, thefe four requifites muft be pundlually ob- 
ferved.—1. T he jointure muft take effect immediately 
on the death of the hufband.—2. It muft be for the life of 
the wife herfelf at leaft, and not pur outer vie, or for any 
term of years, or other fmaller eftate.—3. It muft be 
made to herfelf, and no other in truft for her.—14. It muft 
be made in fatisfaction of her whole dower, and not of 
any particular part of it, and muft be fo expreifed to be 
in the deed ; or it may be averred to be fo. 1 Injl. 366. 
’If the jointure be made to her after marriage, (lie has 
her election,after her huft>and’s death, as in dower adojlium 
ecclcfuz , and may either accept it, or refufe it, and be¬ 
take herfelf to her dower at common law, for fhe was 
not capable of confenting to it during coverture. So 
where a devife is expreffed to be given in lieu and fatis- 
fadtion of dower, or where that is the clear and manifeft 
intention of the teftator, the wife fhall not have both, 
but fhall have her choice. 1 Injl. 366. If, by any fraud, 
or accident, a jointure made before marriage proves to 
be on a bad title, and the jointrefs is evicted, or turned 
out of poffeflion, (he fhall then (by the provisions of the 
fame fiat. 27 Hen. VIII. c. 10,) have her dower ]ro tanto 
at the common law. If a woman who is under age at the 
time of marriage, agrees to a jointure and fettlement in 
bar of her dower, and of i er diftt'bntive (hare of her 
hufband’s perfonal property, in cafe lie dies inteftate ; 
(lie cannot afterwards wave it; but is as much bound as 
if (lie were of age at the time of the marriage. Drury v. 
Drury, (or Buckingham E. v. Drury,) 3 Bro. P. C. 492. 
There are fome advantages attending tenants in dower 
that do not extend to jointreffes ; and fo vice verfa, join¬ 
treffes are in fome refpects more privileged than tenants 
in dower. Tenant in dower by the old common law, is 
fubjedt to no tolls or taxes ; and her’s is almoft the only 
eftate on which, when derived from the king’s debtor, 
the king cannot diftrain for his debt, if contracted dur¬ 
ing the coverture. Co. Litt. 31 a. But on the other 
hand, a widow may enter at once, without any formal 
procefs, on her jointure land, as (lie alfo might have done 
on dower ad ojlium ecclejia, which a jointure in many points 
refembles; and the refemblance was (till greater, while 
that fpecies of dower continued in its primitive (late ; 
1 whereas no fmall trouble, and a very tedious method of 
proceeding, is neceffary to compel a legal affignment of 
dower. Co. Litt. 36. And what is more, though dower 
be forfeited by the treafon of the hufband, yet lands fet¬ 
tled in jointure remain unimpeached to the widow*. 
Wherefore Coke very juftly gives it the preference, as 
being more fure and fafe to the widow, than even dower 
ad ojlium ecclefia, the mod eligible fpecies of any. 2 Comm. 
135. An additional advantage is, that a jointure is not 
forfeited by the adultery of the wife as dower ; and Chan¬ 
cery will decree againft the hufband a performance of 
marriage articles, though he alleges and proves that the 
wife lives feparate from him in adultery. 3 P. IVms. 269. 
If a woman takes a leafe for life of her hufband’s lands 
after his death, fhe (hall have no dower, becaufe (lie can¬ 
not demand it againft herfelf; and if (lie takes a leafe for 
years only, yet (he (hall not fue to have dower during 
thefe years, becaufe it was her own act to fufpend the 
fruit and effedt of her dower during that time. Perk. 350 : 
If a recovery be had againft the hulband by collitlion, 
this fhall not bar the wife of dower ; as if the recovery 
be by confeffion or reddition, which are always under- 
(tood to be by collufion, the hufband always acting and 
concurring in obtaining of them; but it feems to have 
been a very great doubt, whether a recovery by default 
lhould not be a bar : and the better opinion being that 
fuch recovery was a bar at common law, therefore the 
flat. Win. II. c. 4, was made, which ordains that not- 
withftanding-fuch recovery by default, &c. pleaded, the 
tenant (hall moreover in bar of the dower (hew his right 
to the tenements recovered ; and if it be found that he 
had no right, then (hall the demandant recover her 
dower notwithftanding fuch recovery by default againft 
her hufband. Perk. 376. By ftat. Wm. II. c. 4, it ap¬ 
pears, that if the recoveror had right, then the wife is 
barred ; therefore if the heir of the diffeifor be in by de- 
feent, and the difleifee enters upon him, and marries, 
and the heir of the diffeifor recovers by default, or red¬ 
dition, in a writ of entry, in nature of an affize, and the 
hufband dies, his wife (hall not have dower, becaufe he, 
who recovered, had right to the poffeflion by the defeent; 
otherwife, if this diffeifin, defeent, &c. were after mar¬ 
riage, becaufe the hufband was feifed before of a right¬ 
ful eftate during the coverture, whereof his wife had 
title of dower, which cannot be defeated by the diffei¬ 
fin, defeent, and recovery, which all happened during 
the coverture. Perk. 379, 380. 
If the hufband levy a fine with proclamation of his 
lands, and dies, his wife is bound to make her claim 
within five years after his death ; iotherwife (lie fhall be 
barred of her dower ; for though her title of dower was 
not confummate at the time of the fine levied ; yet it 
being initiate by the marriage and feifin of the hufband, 
the fine begins to work upon it prefently after the huf¬ 
band’s death ; and if (he does not claim it within five 
years after, (lie (hall be barred. 2 Co. 93. 3 Injl. 216. 
The wife is, as foon as (he can after the deceafe of her 
hufband, to demand her dower, left (lie lofe the value 
from the time of his death : and in adtion of dower, the 
firft procefs is fummons to appear : and if the tenant or 
defendant 
