the must be the wife of the party at the time of his decease; for if fhe be divorced a vinculo matrimonii, that is, from the band of matrimony, fhe fhall not be endowed; for ubi nullum matrimonium ibi nulla dos, that is, where there is no marriage there is no dower. But a divorce à menfa et thoro, or from bed and board only, doth not deftroy the dower; not even if it is for adultery itself, by the common law. But by the ftatute 13 Edw. I. c. 34. if a woman elopes from her hufband, and lives with an adulterer, fhe fhall lofe her dower, unless her husband be voluntarily reconciled to her. And the widows of traitors, or perfons attainted of treafon, are barred of their dower (except in the cafe of certain módern treafons relating to the coin ); but not the widows of felons. An alien (one born out of the King's allegiance) cannot be endowed, unless the be queen confort; for no alien is capable of holding lands. And that the wife may be endowed, she must be above nine years old at her hufband's death, otherwife fhe fhall not be endowed ".

THE wife being entitled by law to be endowed of onethird part of all fuch lands and tenements of which her husband was feifed in fee-fimple or fee-tail, at any time during the coverture or marriage, fhall hold fuch one-third part during the term of her natural life; and that whether the hath iffue by her husband or not ", provided any issue which she might have had, might by poffibility have been heir. Therefore, if a man feifed in fee-fimple hath a fon by his first wife, and after marries a fecond wife, fhe fhall be endowed of his lands; for her iffue might by poflibility have been heir on the death of the fon by the former wife. But, if there be a donee in fpecial tail, who holds lands to him and the heirs of his body begotten on Jane his wife: though Jane may be endowed of thofe lands, yet if Jane dies, and he mar ries a fecond wife, that fecond wife fhall never be endowed of the lands entailed; for no iffue that he could have, could

by any poffibility inherit them. A feifin in law (that is, a right to poffefs) of the husband, will be as effectual as a feifin in deed, which is an actual poffeffion, in order to render the wife dowable; for it is not in the wife's power to bring the hufband's title to an actual feifin". Yet the feifin of the husband for a tranfitory inftant only, when the fame act which gives him the eftate conveys it alfo out of him again

(as where by a fine land is granted to a man, and he imme diately renders it back by the fame fine), fuch a feifin will not entitle the wife to dower: for the land was merely in tranfitu, and never rested in the hufband. But if the land abides in him for a fingle moment, it feems that the wife fhall be endowed thereof. This doctrine was extended very far by a jury in Wales, where the father and fon were both hanged in one cart, but the fon was fuppofed to have furvived the father, by appearing to ftruggle longeft; whereby he became feifed of an estate by furvivorship, in confequence of which feifin his widow had a verdict for her dower b. A widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorporeal, under the reftrictions before mentioned, unless there be some special reason ta the contrary. Thus, a woman fhall not be endowed of a caftle built for defence of the realm, because it ought not to be divided. But of a caftle that is only for the private use and habitation of the owner, a woman fhall be endowed c. So a woman fhall not be endowed of a common without stint; for as the heir would then have one portion of this common, and the widow the other, and both without ftint, the common would be doubly stocked. But a woman fhall be endowed of a common certain; and fo of other incorporeal hereditaments; as rent, rent-fervice, rent-charge, and rent-feck ",. mentioned in this and a former chapter .--Though curtesy out of a trust is allowed, as was mentioned in the former part of the foregoing fection; yet dower has been refused thereout; a partiality not eafy to be reconciled with reafon, however fettled by the current of authorities f.——Where dower is allowable, it matters not though the husband alien or fell the lands during the coverture; for he aliens them liable to dower, of which the wife cannot be barred but by a fine, or like matter of record, to which the must be privy, and privately examined: wherefore, and for faving the expence of a fine, it is common where the eftate is but of fmall value, for the husband, when he conveys it, to bind himself by a bond, to fave harmless and keep indemnified the purchafer, against any claim that might afterwards be made for or in refpect of dower. Yet as there is no method of effectually barring the wife but by a fine, or like matter of record, the bond can be but of little ufe if the obligor should die infolvent; fo that it behoves the purchafer, in cafe he takes

a bond inftead of having a fine paffed, to look well to the probability of the obligor's dying folvent, and leaving a sufficiency to discharge the bond, in cafe dower should be demanded.

BUT it now feldom happens that the wife has any claim to dower; for not only upon moft preconcerted marriages, where a fettlement is made pursuant to the statute of 27 Hen. VIII. c. 10. and thereby fhe is barred by a jointure made to her in lieu thereof, but when a man purchases an eftate in fee-fimple, it is ufual for him, in order to prevent his wife having any claim of dower therefrom, and to save the expence of a fine in cafe he fhould fell it, to take the conveyance in his own name and the name of another perfon as trustee; as for example, fuppofe A. B. to be the grantor, C. D. the grantee who purchases this eftate, and E. F. a friend of C. D. the grantee. Now, in confideration of the fum agreed for by C. D. to be given to A. B. for this estate, and in confideration of 5s. a-piece paid by the faid C. D. and E. F. the faid A. B. fells and aliens this eftate to C. D. and E. F. TO HOLD, unto the faid C. D. and E. F. and their heirs, to the use of the faid C. D. and E. F. and the heirs of the faid E. F. In truft nevertheless, as to the eftate and intereft of the faid E. F. and his heirs, to the only proper use and behoof of the faid C. D. his heirs and affigns for ever, and to and for no other ufe, truft, intent, or purpose whatsoever. So by this means the wife of C. D. will have no claim or title to dower from the estate; and C. D. may fell and fafely convey the fame to a purchaser without paffing a fine to bar his wife of dower. So if a husband before marriage conveys his eftate to trustees and their heirs, whereby he puts the legal eftate out of him, the wife after his death fhall not be endowed.

HERE we may obferve what has been mentioned concerning the descent of estates held in fee-fimple, and how the law difposes thereof, and of those held in fee-tail, that this is confiftent with the general law of the land. But particular counties, cities, towns, manors, and lordships, being indulged with the privilege of abiding by their own customs; which privilege is confirmed to them by feveral acts of parliament; thofe cuftoms prevail in contradiftinction to the reft of the nation at large. Of thofe cuftoms is the cuftoms of gavel kind, chiefly fubfift

ing in Kent, though it is to be found in other parts of the kingdom. By this cuftom, not only the eldeft fon of the father fhall fucceed to his inheritance, but all the fons alike *. And though the ancestor may be attainted and hanged, yet the heir fhall fucceed to his eftate without any efcheat to the lord'. And by this cuftom the hufband fhall be tenant by the curtefy without having any iffue"; yet curtesy by the cuftom of gavel kind, is subject to feveral difadvantages; for it is only a moiety of the wife's land, and it ceaseth if the husband marries again ".-By the statute 31 Hen. VIII. c. 3. a great part of Kent is made defcendable to the eldest son, according to the courfe of the common law; as by means of that custom divers ancient and great families, after a few defcents, came to very little or nothing. And there are fix other ftatutes for difgavelling particular lands in Kent, befides the 31 Hen. VIII. though that is the only statute in print. Thofe are mentioned in Mr. Robinfon's book on gavel kind P.--Another of those customs is the custom that prevails in divers ancient boroughs, and therefore called borough english, whereby the youngest fon fhall inherit the eltate in preference to his elder brothers 9. And there is a cuftom in other boroughs that a widow fhall be entitled for her dower to all her husband's lands; whereas by the common law fhe fhall be endowed of one-third part only. Likewife there are fpecial and particular cuftoms of manors, of which every one has more or lefs, and which bind all the copy-hold and customary tenants that hold of the faid manors. Some copyholders are for lives, one, two, or three fucceffively; and fome inheritances from heir to heir by cuftom; and custom ruleth thofe eftates wholly, both for widow's eftates, fines, heriots, forfeitures, and all other things.The customs that prevail in the city of London and province of York, which comprehend to confiderable a part of the kingdom, will be the fubject of the enfuing chapter.

CHAP. V.

The Customs of the City of London and Province of York.

SECTION THE FIRST.

WHEREIN THE CUSTOMS OF LONDON AND YORK AGREE, AND WHEREIN THEY VARY.

W

7 HAT thofe cuftoms are within the city of London and province of York, which comprehend fo large and confiderable a part of the kingdom, it is fomewhat ftrange, fays Dr. Burn, that fo few authors have taken any pains to inform their readers or themselves; and that those customs are so ancient, and of ancient times were of fuch general and almost univerfal extent, that fome of the greatest lawyers have doubted whether they were not part of the common law. Formerly, not only in the province of York and city of London, but in moft, if not in all parts of England, a man was refrained from bequeathing the whole of his perfonal eftate away from his wife and children; but the law in that particular is now altered, though it continued in the province of York, the principality of Wales, and in the city of London, later than in other parts of the kingdom, and till very modern times; when in order to favour the power of bequeathing, and to reduce the whole kingdom to the fame ftandard, three ftatutes were provided, the one 4 & S 5 W. & M. c. 2. explained by 2 & 3 Ann. c. 5. for the province of York; another 7 & 8 W. III. c. 38. for Wales; and a third 11 Geo. I. c. 18. for London whereby it is enacted, that perfons within those districts, and liable to those cuftoms, may (if they think proper) dispose of all their perfonal eftates by will; and the claims of the widows children

a Ecclef. Law, 4 V. 368.

b This ftatute of 2 & 3 ́Ann. recites that a provifo was con ained in the fta. tute 4 W. & M. that nothing therin contained fhould extend to the citizens of the city of York; and that the mayor and commonalty, on behalf of the inhabitants of the laid city, had requested that the faid provifo might be repealed. And by the ftatute 2 & 3 Ann. it is enacted that the said provifo, as far as the fame concerned the citizens of the city of

b

York, shall be repealed; fo that it fhall be lawful for all and every the citizens of the city of York, who shall be freemen of the faid city, inhabiting therein, or within the fuburbs thereof, by their last wills and teftaments, to dif pofe of their goods, chastels, and other perfonal eftate, to fuch perfont as they hell think fit, as any other períons inhabiting within the province of York, may lawfully do by virtue of the fla tute 4 W, & M.

H 3

and