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The American Cyclopædia (1879)/Dower

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DOWER (law Lat. doarium, or douarium; Fr. douaire), the estate which the wife has by operation of law in the property of her deceased husband. Strictly it applies only to what the law gives her independent of any act of the husband, and which, in fact, it is not in his power to bar. A marriage portion, therefore, whether given with the wife or secured to her use, and whether so given or secured by the father or other relative, or by the husband himself, is not dower; and yet the term by which such marriage portion was designated in the Roman law (dos) was used by Bracton and other English writers for the right of the widow in the lands of her deceased husband given to her by the common law, as well as the endowment in contemplation of marriage, which last was also called donatio ante nuptias. The English word dower expressed the former, and also the donation before marriage, which was in two modes, viz.: ad ostium ecclesiæ and ex assensu partis. Both of these were made at the porch of the church, after affiance and before marriage; in the one, the husband endowed the wife of lands of which he was himself seized; in the other, with consent of his father, he endowed her of lands belonging to his father; and it was usual to specify the particular lands intended. Endowment at the church door was the common mode of providing for the wife in the time of Bracton (13th century), and no other could be substituted, as by will or any other conveyance; the object of which was to prevent fraud: Non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuerunt conjugia. The feudal restriction against alienation of lands was extended to dower, and the husband was not allowed to endow the wife ad ostium ecclesiæ of more than a third part of his lands. This gave rise to the common law rule which has ever since prevailed. In the absence of such dotation, or in case of the omission to specify the particular lands, it was prescribed that the wife should be entitled to one third of the lands of the husband for life if she survived him, which was called dos rationabilis. It was at first limited to the lands which the husband had at the time of the dotation, unless he specially charged his future acquisitions; and in case he had no lands, or not sufficient, he was permitted to endow his wife of personal property, which was held to be a bar against any claim to dower of lands thereafter acquired. But in Magna Charta it was provided that the wife should have for dower the third part of all the lands which the husband had held during his lifetime, unless she had been endowed with less ad ostium ecclesiæ. In the reign of Henry IV. it was denied that the wife could be endowed of her husband's goods and chattels; and Littleton, who wrote in the reign of Edward IV., asserted that she could be endowed ad ostium ecclesiæ of more than a third part of the lands, and that she had the election after the husband's death to accept it or to take her dower at common law. In consequence of this uncertainty, that mode of endowment fell into disuse, but was never abolished until by act 3 and 4 William IV., c. 105 (1833). Dower at common law is different from the dotation of other countries, in being limited wholly to lands, and to such only as the husband holds in fee. By the civil law the donatio ante nuptias (or, as Justinian called it, propter nuptias) was all the provision made for the wife. It might consist of either lands or personal property; but though it went into the possession of the husband, it could not, if it consisted of lands, be alienated by him even with the consent of the wife, for which the reason given is the fragility of the female sex (ne sexus muliebris fragilitas in perniciem substantiæ earum convertatur). Upon the death of the husband, or dissolution of the marriage otherwise, the wife only took what had been given with her on the marriage, or that of which a donation had been made during the marriage. Of the other property of the husband she could take nothing either as widow or heir.—In France, the two modes of providing for the wife are designated by the discriminative terms dot and douaire; the former of which is defined to be that which the wife brings in marriage; the latter is the right which the wife has, by custom or matrimonial contract, to a certain portion of the estate of the husband upon his death. The origin of douaire was that in some provinces of France, called France coutumière, women were not endowed on marriage; and hence grew up the custom that the husband at his death should leave something for the support of the wife. What was so left was called either dot or douaire, the wife being said to be douée or dotée. But as it was intended for her support merely, it was provided that after her death it should go to the husband's children if he left any. Philip Augustus fixed the dower of the wife at one half of the goods which the husband had at the marriage. Henry II. of England established in his French provinces a rule that dower should be one third, and this difference continued to exist on the opposite sides of the Loire, until the customary law was swept away by the legislation which succeeded the revolution of 1789. By the present law of France married persons may, by stipulation made before marriage, become subject to the law of community, or to the law of dowry. If the former, it brings into common stock all the movables of which the parties are possessed at the time of marriage, and the immovables which shall be acquired during marriage. Dower (la dot) is what the wife brings to the husband in marriage, and it may be either by donation from another or by a settlement of the wife upon herself, and it may extend to all the present or future property of the wife, but cannot be constituted or augmented during marriage. The parties may stipulate for a community of future acquisitions only. The husband has the management of dotal property, but is accountable as a usufructuary, and in case it be put in peril, the wife may obtain a separation of goods.—The English law of dower has recently undergone very great changes. By statute 3 and 4 William IV., c. 105, the widow is not entitled to dower of lands which the husband has disposed of in his lifetime, or by will. All charges by will, and all debts and encumbrances to which the estate of the husband is subject, take priority of dower; and dower is made subject to any restrictions which the husband may impose by will. But on the other hand, the wife is entitled to equitable dower of any beneficial interest of the husband which shall amount to an estate of inheritance in possession, except joint tenancy; and no gift of personal property by the husband can invalidate the right to dower, unless expressly so declared by will. This modification of the law of dower has probably grown out of the general custom prevailing in England among land proprietors of making marriage settlements. In cases where this is omitted, the wife still has some provision under the statute of distribution (29 Charles II.), which gives her one third of the personal estate of the husband when he dies intestate, not for life merely, but absolutely.—In the United States, the general rule prevails of allowing to the widow an estate for life in one third of all the lands of which the husband was seized in fee. To give the right, however, the seisin of the husband must be a beneficial one, and not merely as trustee or for the use of another, and the marriage must be legal, or if voidable, must not have been set aside during the husband's life. The wife may be barred of her dower in various modes; as: 1, by an old statute of Edward I., which has been recognized in some of the states and not in others, elopement from the husband, and living with an adulterer; 2, acceptance of a jointure or of a provision made by will in lieu thereof; 3, divorce, for in general the marriage must continue until the husband's death, though in some states it is provided that if divorce is had for the husband's misconduct, the wife shall be immediately endowed as if he were dead; 4, joining with the husband in a conveyance of the lands under the statute formalities. This last is the most usual mode, but if the conveyance be by way of mortgage, the wife shall have dower subject to the mortgage. Dower should be assigned to the widow by the husband's heir or alienee within the widow's quarantine, which originally was 40 days, but now by statutes is greatly enlarged, during which she may continue to occupy the mansion house; but if he fail to do so, or make an assignment which she thinks unjust, she may recover by suit. The profits issuing out of lands are subject to dower, as well as the lands themselves, and assignment of dower in such cases is made by setting out one third the annual proceeds during the widow's life. The law of dower has recently undergone many changes in different states. In several the wife now has dower only in the lands of which the husband died seized; in others, though the husband's several conveyance does not bar dower, a judicial sale for the enforcement of a debt or a contract against him will do so; in others still the estate is enlarged and made an estate in fee, instead of for life only. The share which the widow takes in the personal property is not called dower, and there is no uniformity in the statutes on that subject.