lawful eviction, the same statute has provided a remedy for the mischief; for it is thereby enacted," that if any such woman be lawfully expulsed or evicted from her said jointure or from any part thereof, without any fraud or covin, by lawful entrie or action, or by discontinuance of her husband, then every such woman shall be endowed of as much of the residue of her husband's tenements or hereditaments, whereof she was before dowable, as the same lands and tenements so evicted and expulsed, shall amount or extend unto." b 27 Hen, 8. c. 10. 10 Car. 1. c. 1. in Ireland, vol. ii. p. 21. 219 CHAPTER V. OF PROVISIONS MADE FOR THE WIFE BEFORE MARRIAGE, WHICH, not posses sing the requisites of the sta tute may be a bar of dower in equity. A JOINTURE settled upon a woman, even of full age, would Jointure not have been a bar of dower at the common law, and the widow would, notwithstanding, be entitled to both her jointure and her dower. The statute of 27 Hen. 8. c. 10., has changed the law in this respect; for it enacts, that, if the jointure possess certain requisites, it shall be a bar to her claim of dower, which cannot be avoided, if the jointure have been made before marriage. If it have been made during the marriage, it was no bar of dower, unless the widow accepted it. If it were deficient in any of the qualities required by this act, then the case stood as it had been at the common law, and the widow took both the jointure and the dower. The requisites for a valid jointure under this statute have been already enumerated, and the construction of its various clauses has been fully considered.a But although a jointure settled on a woman previous to her marriage, with the intention that it shall be a bar to her claim of dower, may be wanting in many of the materials required by the statute, still it may secure as sufficient a provision for her, as if it were precisely conformable, and therefore it would be unjust that a widow in such a case should take advantage of the defect, and have both jointure and dower; and accordingly, to prevent this injustice where such a settlement has been made, a court of equity, acting on the consciences of the parties, will enforce a compliance a Chap. IV. Book II. with the contract by the widow, and restrain her from suing for dower. However, although the 27 Hen. 8. will be so far restrained in its operation, equity, in the exercise of this jurisdiction, will always attend to the distinction made by the statute itself between provisions settled before and during the marriage; for, if they be before marriage, the Court, following the act, will consider them as bars to dower; and, if during the marriage, then the widows will not be obliged to take such provisions in lieu of their dower, but will be at liberty to accept or reject them. And the reason for making widows abide by the provisions settled on them before marriage, and leaving them the power of selection between a provision made during marriage and their dower, seems to be this, that as before the marriage they were sui juris, and capable of contracting, they shall be bound by such engagements; but as they were incapable of contracting during their marriage, they shall be at liberty after the marriage to choose the provision most advantageous to them. It is intended to appropriate the remainder of this chapter to the consideration of the provisions made on women by their intended husbands before marriage, which, although not conformable to the statute, have yet been held in equity to be valid bars of dower; and in the next chapter to treat of the same description of provisions, viz. those not conformable to this statute which have been made during the coverture, and of the decisions relating to such an acceptance of them by the widow as will bar her election: And it will appear from the cases to be immaterial, whether the provision intended to be a jointure, was secured by an actual settlement, or merely by articles agreeing to settle; or if by the latter, whether they have been entered into before or during marriage, as a court of equity will decree the articles to be specifically executed, and will treat them, so far as the claim of dower is concerned, precisely in the same way as if the settlement had been actually made in the first instance. And, first, it is settled, that any provision, however inadequate or precarious it may be, for which a woman vision, inadequate or precarious may be dower in equity. a bar of contracts, and which she agrees to accept in lieu of her Any prodower, may be a valid jointure in equity. There is one however exception to this rule, namely, when the woman is an infant; and in such case it is settled that, if the provision be precarious, she is not barred of her dower, but may or may not accept of the provision under the jointure, or have recourse to her dower, as she pleases. The authorities on this part of the subject shall be stated in the first instance; as, while they prove the exception, they, at the same time, establish the rule. In Glover v. Bates It was provided, in articles before marriage, that the terms therein mentioned should be to the wife, in full satisfaction and recompense of all right and claim of dower, or any claim or right by common law, &c. &c. The wife lived some time after the death of her husband, who died intestate, and she accepted of the terms mentioned in the articles. Upon her death, her representative brought a bill to have her distributory share of the husband's estate, notwithstanding these articles. Lord Hardwicke said, The first question is, if the wife is bound by these articles? This demand of the wife, (if she had in her life demanded it,) though not properly the subject matter of a release, yet may certainly be extinguished by agreement. She was an infant at the time of entering into this agreement; therefore, at the death of the husband, she had her election, and she has made it by accepting what was designed by the articles as a satisfaction, which plainly shows her sense of the articles." This decision of Lord Hardwicke is quite unqalified as to the nature of the interest given by the articles. His Lordship seems to say, that, whether the provision be certain or uncertain, adequate or inadequate, the infant is not bound by it. But the succeeding cases confine the proposition to instances, in which the provision in lieu of dower was uncertain and precarious. As in Caruthers v. Caruthers, where Sir Joseph Jekyl held, that a settlement of an Infant not dower by barred of articles before marriage, un less she elects after husband's death. Infant not barred by settlement if precari ous and uncertain. estate on the husband for life, remainder to another for life, remainder to the wife for life, did not bar the wife, who was an infant, of her dower, because this provision was precarious; it being doubtful, whether the estate would ever be the wife's in possession. In this case, the estate was certain; the enjoyment only was doubtful. But in Smith v. Smith the amount of property was uncertain, as, where by a settlement previous to marriage, it was provided that if the wife, who was an infant, should survive her husband, and there should be no issue at his decease, or she should not be enseint, then she should be entitled to receive to her own use not only all such share of his personal estate as she would be entitled to by the custom of London, as the widow of a freeman, but that she should also have all the household goods and furniture of her said husband; and that if there was a child or children of the marriage, that then she should have the said household goods, &c. and be entitled to her share of the residue of his personal estate, according to the custom of London; and Lord Loughborough held, that the wife was not barred of her dower by this settlement. His Lordship does not, in his judgment, advert either to the circumstance that the wife was an infant when the settlement was executed, or that the provision was precarious; however, as these were the only grounds on which the counsel for the wife argued the case, it is probable they were the grounds of the decision. The inference from these cases is, that, if the settlement be not precarious the infant will be bound by it. Lord Thurlow held, in Williams v. Williams, that an infant wife was bound by a reasonable settlement; and, in Williams v. Chitty, it was decided, that a wife was barred of dower by a settlement of stock and leasehold property made on her before marriage, while she was an infant. But if the woman be an adult, she may contract for any species of provision, however small or uncertain, in lieu |