four requiſites muſt be punctually obſerved. 1. The jointure muſt take effect immediately on the death of the huſband. 2. It muſt be for her own life at leaſt, and not pur auter vie, or for any term of years, or other ſmaller eſtate. 3. It muſt be made to herſelf, and no other in truſt for her. 4. It muſt be made, and ſo in the deed particularly expreſſed to be, in ſatisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, ſhe has her election after her huſband's death, as in dower ad oſtium eccleſiae, and may either accept it, or refuſe it and betake herſelf to her dower at common law; for ſhe was not capable of conſenting to it during coverture. And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointreſs is evicted, or turned out of poſſeſſion, ſhe ſhall then (by the proviſions of the ſame ſtatute) have her dower pro tanto at the common law[1].
There are ſome advantages attending tenants in dower that do not extend to jointreſſes; and ſo, vice verſa, jointreſſes are in ſome reſpects more privileged than tenants in dower. Tenant in dower by the old common law is ſubject to no tolls or taxes; and hers is almoſt the only eſtate on which, when derived from the king's debtor, the king cannot diſtrain for his debt; if contracted during the converture[2]. But, on the other hand, a widow may enter at once, without any formal proceſs, on her jointure land; as ſhe alſo might have done on dower ad oſtium eccleſiae, which a
- ↑ Theſe ſettlements, previous to marriage, ſeem to have been in uſe among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. "Dotem non uxor marito, ſed uxori maritus affert: interſunt parentes et propinqui, et munera probant." (de mor. Germ. c. 18.) And Caeſar, (de bello Gallico, l. 6. c. 18) has given us the terms of a marriage ſettlement among the Gauls, as nicely calculated as any modern jointure. "Viri, quantas pecunias ab uxoribus dotis nomine acceperunt, tantas ex ſuis bonis, caſtimatione facta, cum dotibus communicant. Hujus omnis pecuniae conjunctim ratio habetur, fructuſque ſervantur. Uter eorum vita ſuperarit, ad eum pars utriuſque cum fructibus ſuperiorum temporum pervenit." The dauphin's commentator on Caeſar ſuppoſes that this Gauliſh cuſtom was the ground of the new regulations made by Juſtinian (Nov. 97.) with regard to the proviſion for widows among the Romans: but ſurely there is as much reaſon to ſuppoſe, that it gave the hint for our ſtatutable jointures.
- ↑ Co. Litt. 31. a. F. N. B. 150.
