Entail, Strict Settlment And Provision For Spouses, Daughters And Sons Notes

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...

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