were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seised of an estate by survivorship, in consequence of which seisin his widow had a verdict for her dower i. A widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorpo real, under the restrictions before-mentioned, unless there be some special reason to the contrary. Thus, a woman shall not be endowed of a castle built for defence of the realm, because it ought not to be divided. But of a castle that is only for the private use and habitation of the owner, a woman shall be endowed k. So a woman shall 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 stint, the common would be doubly stocked. But a woman shall be endowed of a common certain; and so of other incorporeal hereditaments; as rent, rent-service, rent-charge, and rent-seck 1, 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 section, yet dower has been refused thereout; a partiality not easy to be reconciled with reason, however settled by the current of authorities m. Where dower is allowable, it matters not though the husband alien or sell 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 she must be privy, and privately examined; wherefore, and for saving the expence of a fine, it is common, where the estate is but of small value, i 2 Black. Com. 132. k Co. Litt. 31. 1 Ibid. 32. m Co. Litt. 29. note 6. 13th edit. " Ibid. 32. money to be laid out in land, the Vice-Chancellor inclined to think that the wife was dowable of the estate borrowed, Henley v. Webb, 5 Madd. 407. for the husband, when he conveys it, to bind himself by a bond, to save harmless and keep indemnified the purchasor, against any claim that might afterwards be made for or in respect 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 of but little use if the obligor should die insolvent; so that it behoves the purchasor, in case he takes a bond, instead of having a fine passed, to look well to the probability of the obligor's dying solvent, and leaving a sufficiency to discharge the bond, in case dower should be demanded. But it now seldom happens that the wife has any claim to dower; for not only upon most preconcerted marriages, a settlement is made pursuant to the statute of 27 Hen. VIII. c. 10., and thereby she is barred by a jointure made to her in lieu thereof, but when a man purchases an estate in fee-simple, it is usual for him, in order to prevent his wife having any claim of dower therefrom, and to save the expence of a fine, in case he should sell it, to take the conveyance in his own name and the name of another person as trustee; as for example, suppose A. B. to be the grantor, C. D. the grantee who purchases this estate, and E. F. a friend of C. D. the grantee. Now, in consideration of the sum agreed for by C. D. to be given to A. B. for this estate, and in consideration of 5s. a piece paid by the said C. D. and E. F., the said A. B. sells and aliens this estate to C. D. and E. F. TO HOLD, unto the said C. D. and E. F. and their heirs, to the use of the said C. D. and E. F. and the heirs of the said E. F. In trust, nevertheless, as to the estate and interest of the said E. F. and his heirs, to the only proper use and behoof of the said C. D. his heirs and assigns for ever, and to and for no other use, trust, 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 sell and safely convey the same to a purchasor without passing a fine to bar his wife of dower. So if a husband before marriage conveys his estate to trustees and their heirs, whereby he puts the legal estate out of him, the wife after his death shall not be endowed (18). Here we may observe what has been mentioned concerning the descent of estates held in fee-simple, and how the law disposes thereof, and of those held in fee-tail, that this is consistent 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 several acts of parliament, those customs prevail in contradistinction to the rest of the nation at large. Of those customs is the custom of gavelkind, chiefly subsisting in Kent, though it is to be found in other parts of the kingdom P. By this custom, not only the eldest son of the father shall succeed to his inheritance, but all the sons alike 9. And though the ancestor may be attained and hanged, yet the heir shall succeed to his estate without any escheat to the lord'. And by this custom the husband shall be tenant by the curtesy without having any issues; yet curtesy by the custom of gavelkind, is subject o 1 Black. Com. 75. P Ibid. 74. 9 Co. Litt. 175. r1 Black. Com. 74. 2 Ibid. 84. s Co. Litt. 30. (18) And where there is a conveyance of lands to a trustee to such uses as A shall appoint, and in the meantime, and until he makes an appointment to the use of A and his heirs, A has a qualified and determinable fee, until by the exercise of the power an use vests in the person in whose favor the appointment is made; and by such appointment the right to dower, which belonged to the wife of A, is extinguished and gone. For, from the time of the appointment, the use appointed under the power will take effect in the same manner as if it had been inserted in the original deed creating the power, and as if it had stood in the place of that power. Ray v. Pung, 5 Barn. & Ald. 561. S. C. 5 Madd. 310. Moreton v. Lees, Sugd. on Pow. 339. See also Watk. Pr. Conv. (ed. Preston) 48. But if no appointment is made, the fee from being qualified and determinable becomes simple and absolute, and consequently the right to dower attaches. See Maundrell v. Maundrell, 10 Ves. 255. to several disadvantages; for it is only a moiety of the wife's land, and it ceaseth if the husband marries again t. — By the statute 31 Hen. VIII. c. 3. a great part of Kent is made descendable to the eldest son, according to the course of the common law; as by means of that custom divers ancient and great families, after a few descents, came to very little or nothing". And there are six other statutes for disgavelling particular lands in Kent, besides the 31 Hen. VIII., though that is the only statute in print. Those are mentioned in Mr. Robinson's book on gavelkind *. Another of those customs is the custom that prevails in divers ancient boroughs, and therefore called borough-english, whereby the youngest son shall inherit the estate in preference to his elder brothers y. And there is a custom in other boroughs, that a widow shall be entitled for her dower to all her husband's lands; whereas by the common law she shall be endowed of one-third part only. Likewise there are special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants, that hold of the said manors a. Some copyholds are for lives, one, two, or three successively; and some, inheritances from heir to heir by custom; and custom ruleth those estates wholly, both for widow's estates, fines, heriots, forfeitures, and all other things b. The customs that prevail in the city of London and province of York, which comprehend so considerable a part of the kingdom, will be the subject of the ensuing chapter. t Co. Lit. 30. note 1. 13th edit. refers to Robins, Gavelk. b. ii. c. 1. and says, "There the learned author "suggests, that some have doubted "whether there is any such variance "between the common law and the "custom, and therefore undertakes "to prove it by authorities on re"cord." "Co. Litt. 140. * Robins, on Gavelk, 75. a Ibid. b Bacon's Law Tracts, 137. CHAPTER V. OF THE CUSTOMS OF THE CITY OF LONDON AND PROVINCE OF YORK. SECTION I. Wherein the Customs of London and York agree, and wherein they vary. WHAT those customs are within the city of London and province of York, which comprehend so large and considerable a part of the kingdom, it is somewhat strange, says Dr. Burn, that so 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 such general and almost universal extent, that some of the greatest lawyers have doubted whether they were not part of the common law a. Formerly, not only in the province of York and city of London, but in most, if not in all parts of England, a man was restrained from bequeathing the whole of his personal estate 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 same. standard, three statutes were provided, the one 4 & 5 W. & M. c. 2. explained by 2 & 3 Ann. c. 5.b for the province of a 4 Eccles. Law, 368. b This statute of 2 & 3 Ann. recites, that a proviso was contained in the statute 4 W. & M. that nothing therein contained should extend to the citizens of the city of York; and that the mayor and commonalty, on behalf of the inhabitants of the said city, had requested that the said proviso might be repealed. And by the statute 2 & 3 Ann. it is enacted that the said proviso, as far as the same concerns the citizens of the city of York, shall be repealed; so that it shall be lawful for all and every the citizens of the city of York, who shall be freemen of said city, inhabiting therein, or within the suburbs thereof, by their last wills and testaments, to dispose of their goods, chattels, and other personal estate, to such persons as they shall think fit, as any other persons inhabiting within the province of York may lawfully do by virtue of the statute 4 W. & M. K |