#1667 - Entail, Strict Settlment And Provision For Spouses, Daughters And Sons - History of English Law

Provision for Spouses, Daughters, and Younger Sons

(1) Spouses - Two forms of life interest arose by operation of law: dower and curtesy.

‘Dower’ – W’s right to the enjoyment of some part of her H’s freehold lands after his death. H could make a gift to his wife (‘dower’) on day they married and this would take effect on H’s death if W survived him. W not a descendent of her H so outside scope of inheritance. ‘Dower’ was an estate of freehold, a form of tenancy for life arising by operation of law. Created a life interest for W, reminiscent of the usufruct in Roman law. No dower out of leasehold or copyhold land, though widows of copyhold Ts had a customary right to ‘freebench’.

Process: Lands to be assigned as dower were nominated before nuptials, after negotiation between the families. At the wedding H would give W tokens, symbolising the dower.

13^th century: Disputes often occurred – common law forbade assignment of more than 1/3 of H’s lands as dower.

An alternative arrangement was for H to endow his W generally of all his lands, without nominating any specific property. W then entitled to claim a life interest in a reasonable share of H’s land, which law fixed at maximum poss (1/3) – in Glanvill’s time it was 1/3 of all lands owned in fee by H at the time of marriage, but later the law allowed the widow to have the like share of land acquired or disposed of during marriage.

Dower was originally a matter of voluntary gift upon marriage, but Glanvill (1187-89) regarded the endowing of the wife as a matter of obligation: ‘every man is bound both by ecclesiastical and by secular law to endow his wife at the time of his marriage’ (book VI, I). Arises by:

1. Actual conveyance from H to W.

2. Later after Magna Carta, by law – created a common law right to dower, independent of any agreement or formality at the time of marriage, although it could be overridden by an express assignment of less.

Two writs lay to claim dower: the writ of right of dower, and the praecipe writ unde nihil habet. Later in the 13^th c. then possibility of overriding the law disappeared, so that a widow became entitled to reject specified dower and claim her common law share. The nomination of a specific dower fell out of use due to the right of election.

14^th c. onwards: Jointure – Dower not available out of land held by H’s feoffees to uses. Chancery did not recognise dower of a charge held in use. W was not married to the feoffees so she could not claim anything. The making of feoffments to uses was common, and it was therefore the practice to create settlements which included provision for W after H’s death, usually a grant of a joint life estate to H and W with remainder in tail to their heirs male. Arrangement called a jointure.

Issue: Statute 1536 executed uses – makes H the legal holder of the land once more. Revived W’s right under Magna Carta to 1/3. Legislation enacted so woman could not claim rights in dower if she had jointure. The Statute of Uses 1536, by executing uses, would have revived dower generally; but it was enacted that this should only avail wives who had no jointures, so that jointresses should not be entitled to a dower too.

19^th century: Dower Act 1833 empowered Hs to bar dower by will or alienation inter vivos. 1925 abolished.

Curtesy - Tenancy by the curtesy of England was the right of the husband who survived his wife to hold all of the land which she had brought to the marriage for the rest of his life. Upon marriage the husband did homage for his wife’s land. After his death it passed to the wife’s heirs. Curtesy was available only if a child had been born alive, which may be a consequence of regarding the function of a female heir as being simply to transmit the inheritance from her ancestor to the heirs of her marriage.

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Maritagium and fee tail – Two gift estates which showed the willingness of fathers to impoverish his heir by giving to his other children, but only to benefit his children, not their collateral families. Created a chance for the younger branches of the family to establish themselves. Effectively these estates gave his other children rights ‘in limbo’ – they were granted the land, but if certain contingencies did not occur within a certain time the gift estate ended and reverted to the father, or his heir. Otherwise lesser family could get land due to common law rule that heir could not be a lord.

(2) Daughters - Maritagium was a gift to H and W upon their marriage, intended to provide for them during their lives, and then for the children of the marriage, if any. If there were no children the land was intended to come back to the donor or his heirs, and not to pass to the woman’s collateral heirs. From this followed a central feature of maritagium, that homage was not taken from H or from the children of the marriage. The absence of homage prevented the inconvenient effects of the rule against being both lord and heir (‘there is a general rule according to the law of the realm that no man can be both heir and lord of the same tenement’ Glanvill VII.1) while custom provided protection against the donor’s heir. The taking of homage could be insisted upon for the first time by the third heir from the woman.

Limitation period: 3 generations. No need to perform homage or services. Keep waiting if daughter and her kids have babies fee simple passes. So lost to father’s distinct family. Homage paid to 3^rd person who becomes lord.

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(3) Younger sons: the fee tail/entail - Origins of the fee tail/entail may be approached by comparing the situation of a daughter provided with maritagium with that of a younger son. Aimed to provide for younger son and his children – if there was no child the gift would revert to the donor, or the donor’s heir. Father gives to younger son and his heirs. As soon as the heir has a child this limbo control over the land metamorphosises into a fee simple. If no child then the land reverts to the father or the father’s heir. Limitation period of 1 generation.

‘Fee tail’: It describes an estate of inheritance in real property which cannot be sold, devised by will, or otherwise alienated by the owner, but which passes by operation of law to the owner’s heirs upon his death. The purpose of an entail was to keep the land of a family intact in the main line of succession.

Rationale: The absence of a custom obliging an heir to respect his ancestor’s gift to a younger son, and rule that one may not be both lord and heir of a given tenement, put an illegitimate son in a better position than that of a legitimate younger son. The illegitimate son’s advantage depended upon the rule that he had no heirs save his issue. The same effect might be achieved in the case of a legitimate younger son by granting land to him and the heirs of his body, ensuring, for the purposes of the gift, that if he died without issue he would die without heirs, and the land would rejoin the main inheritance.

Effect of the entail: Such a grant to one and the heirs of his body was interpreted in the 13^th c. as a conditional gift: if the grantee died without an heir of his body the conveyance provided that the land would revert to the donor (or remain to someone else).

What was the condition ‘to G and the heirs of his body’?

1. Fulfilled if G has a child, whether or not the child survives G. A could keep the land (if G assigned the land to A in life).

2. Requires that the child survives G – so after G’s death, D could recover land from A (who G assigned to in life).

= Generally understood that the condition would be fulfilled only if the grantee had a child who survived him.

Following the decision in Delariver v. Spigurnel (1281) all that was required was the birth of a child, even if that child did not survive the donee.

Issue: Merely having a child sufficed, even if C predeceased G, G had an interest for life and could alienate it to A. Not clear that this approach is consonant with D’s intention – why should A keep land after G’s death, where C predeceased G? D wanted to keep the land in the family.

Statute De Donis Conditionalibus (1285) [Statute of Westminster II, c.1]: Provision made that ‘the will of the donor . . . shall be observed; so that those to whom a tenement is given upon condition shall not have the power of alienating the tenement so given in such a way that it will not remain to the issue of those to whom the tenement was so given after their death or to the donor or to his heir if issue fails, whether because there was no issue at all or there was issue but it failed by death without an heir of such issue’.

Aim: Protected intentions of donors from frustration, in most liberal terms. Donors able to restrict inheritance in ways not permissible at common law, but deemed to fall within the equity of the statute. Intended to reverse De la river. Ordained that in the future when land was given to a man and wife and the heirs of their bodies, or to one person and the heirs of his body, or in frank-marriage, the ‘will of the donor manifestly expressed in the terms of the gift (forma doni)’ was observed (applied to gifts in maritagium, X and the heirs of his body, and X and Y and the heirs of their bodies).

Effect: Statute meant the inter-period lasted as long as the donor wanted it to - unless he specified the father could tie up land...