In order to determine to what extent a widow is entitled to dower out of her husband's lands, it is necessary to ascertain by what nature of title he acquired them. "In case a man dies seised of lands whether quarterland, intack, cottage or mill, which he has acquired by inheritance or by bargane-eirey his widow is entitled to one half during her lifetime as dower, provided she remains unmarried and chaste.
In the case of Cain v. Cain (Lib Plitor, 1836) it was decided that the giving birth to an illegitimate child caused a widow to forfeit her dower in her husband's lands of inheritance.
A second wife is entitled to dower to the same extent as a first wife, unless there be living at the husband's decease issue of the first marriage in which she wil1 be entitled to a quarter only (Hampton v. Hampton, Lib Plitor, 1857, and Clucas v. Clucas, Adv. N.B. p. 374.)
Deemster Parr in his "Abstract of the Customary Laws of the Isle of Man," says, if a man marry two wives, if he have children by the first the second shall enjoy but a fourth part of the farm during her widowhood, and so consequently if he marry more wives, having children by the the former the latter shall still have the fourth part, but if he have no children by the former wife or [73] wives, the latter shall still have the full widow right according to law.
In Garrett v. Garrett Adv. N.B. p. 354, it was decided that a second wife was entitled to dower to the extent of one-half in lands which had become vested in and possessed by her husband who was heir-at-Iaw of the devisor after his first wife's decease. Although there was issue of his first marriage then living, and although he had during the first marriage a con tingent interest limited to him by his father's will, the limitation being by way of executory devise his interest did not become vested until it fell into possession during the second marriage.
The right of dower in lands acquired by the husband by voluntary settlement or by devise, he not being the next heir of the grantor or devisor, is the same in extent as that in lands acquired by inheritance or bargane-eirey, but differs from it in certain incidents. The writer is unable to say whether this statement will apply to the interest of a second wife in lands of her husband so acquired, the cases before quoted on the dower of a second wife being confined to lands acquired by inheritance or bargane-eirey. [note 1]
As to lands of inheritance not liable to be taken in execution for debt, the husband cannot [74] by any conveyance (unless executed by her) or by his will, or by contracting debts bar or charge his wife's dower unless in consequence of such debts the husband be actually declared bankrupt for by the Bankruptcy Act all the lands of the husband whether inheritance or otherwise are liable to be sold for debt. Of course his wife's dower would be included otherwise the lands neither in the hands of the heir at law nor of the widow would be liable for the payment of debts. [note 2]
As to lands acquired by inheritance but liable by law to the payment of debts such as certain intacks, mills and cottages, and also as to lands of any description acquired by voluntary settlement or devise in favour of a person not being the next heir of the settlor or devisor, although the husband cannot bar or charge his wife's dower therein by any conveyance either by way of sale or mortgage unless executed by her, yet her dower may be affected by his debts as the lands may in his lifetime be taken under execution or by operation of the Bankruptcy Act and sold, or after his death may be liable in the hands of his widow and heir at law or devisee in default of the personal estate for payment of his debts whether by specialty or simple contract. A husband has therefore indirectly the power of barring or charging his wife's dower in lands of the last mentioned description, but in order to do so must by the same means divest himself and his heirs of all interest therein.
[75] The husband's right of the curtesy [note 3] in customary lands of any description acquired by his wife by inheritance or bargane-eirey is similar in extent to the dower of a wife in her husband's lands of inheritance and does not depend on the birth of issue (See case of Isdale v Morrison in which the curtesy of the husband in his wife's inheritance cottage land is decided to be half for life or viduity). This right he will forfeit by a second marriage (Lib Cancellar 1648 p. 63.) In case lands so acquired are of a description not liable to be taken in execution for debt, inheritance quarterlands, for instance, if the husband should contract debts his own interest only in these lands, viz., — the profits during their joint lives and his right by the curtesy is liable to be taken in execution therefor. Her rights cannot be affected unless by a conveyance executed by herself along with her husband. The writer is not aware of any authority defining the extent of the liability of the wife's inheritance, intacks, mills and cottages to the debts of the husband. [note 4]
[76] The husband's right to curtesy in lands acquired by his wife by devise or voluntary settlement from a person of whom she was not next heiress is similar in extent to his right in her lands acquired by inheritance. In either case he cannot affect her lands further than during his own interest therein, viz., during the joint lives, and his right by the curtesy aftenvards by any conveyance unless executed by her, along with him, but in the case of these lands the husband by contracting debts may during his lifetime cause his wife's interest as well as his own to be attached and sold for payment thereof, and after his decease, in case there should be a deficiency of his personal estate, the lands would be assets for payment of such debts. [note 5]
Although the wife's lands so acquired may by the Common Law be liable to be taken in execution for the husband's debts, it does not follow that they are liable for such debts under the Bankruptcy Act. This Act by its own words is confined to the property of the husband ur to the property which may descend, &c., to himself and therefore appears to apply to the husband's interest only in his wife's lands. The remedy under execution in such a case would therefore appear to be more extensive than under the Act in question. The husband by the Statute of 1777 [note 6] has power to lease his own ir~heritance lands for any term not exceeding twenty-one years in possession (the highest and most [77] improved rent being reserved) so as to bind his wife's dower. He has, however, no such power to lease her lands so as to bind her in case of her surviving him or her heirs in case she predeceases him.
By the Customary or Common Law of the Island, married women had a power even in their husband's lifetime to make dispositions by will of devisable lands and personal estate, and it may be presumed that such right remains in all cases in which it has not been affected by any Statute Law. In many respects this power has been curtailed by Statutes, but as none of these Statutes apply to the case of a wife's disposition of her own lands acquired by inheritance, settlement or devise, it may be presumed that she still can lega11y exercise such power of disposition over them if they are of such a description as to be devisable by will in other respects, chattel intacks for instance, but subject of course to the husband's rights therein.
The writer is not aware that such a case has arisen or been decided, but on principle he inclines to think that such right may still exist.
A very ancient customary law [note 7] declares that "If any man marry a wife and the wife depart before a twelve-month and a day, the man shall have none of the marriage goods, and in like manner if the man depart before a twe1ve- [78] month and a day the wife can have no part or portion of his goods} except it be by gift or bequeathed by the will of either party; if there be no will or testament made then, the goods to return to the next of kin."
Although this law refers in words to "goods" only, it was decided so late as 1788 by the Court of Common Law., and the Keys on appeal that a similar custom prevailed as to a widow's dower in lands. In the case of Cowle v. Cowle (Lib Plitor 1788) the plaintiff claimed dower in the estate of Grenaby in Kirk Bride, the inheritance of her deceased husband. It was disputed on the ground that her husband had died within a year after marriage. Held that she was not entitled. The writer is not aware of any other authority beyond this solitary case of Cowle v. Cowle authorizing the application of such a custom to lands, and as the custom is certainly obsolete or repealed by the Act of 1777 concerning intestates as to goods, he ventures to think that the Courts now would be exceedingly reluctant to act upon it.
It is not always necessary in order to entitle a widow to dower that her husband should have had actual possession. [note 8]
In a note to Hovendon's Blackstone, Vol. 2, p. 127, the law is shortly stated as follows:— "A man will not be entitled to tenancy by the curtesy nor a woman to dower out of a reversion or [79] remainder expectant upon an estate of freehold, but upon a reversion expectant upon an estate for years both these rights (of dower and curtesy) accrue for the possession of the tenant for years constitutes a legal seisen of the freehold in reversion." This was the law of England, and the writer has never met with any authority to lead him to doubt that it is the law of the Isle of Man except in the case of lands possessed in dower by a prior doweress.
In such a case the law of the Island favours the widow by giving her dower therein, thereby in that particular giving her dower in a reversion expectant on an estate for life. In the cases of Cannan v. Cannan. 373, and Clucas v. Clucas, Adv. N.B., 374, it was decided that where the deceased husband was entitled to an estate, part of which remained in possession of the widow of his ancestor as her dower, his widow in case of his death before the doweress was entitled to dower not only in the part which had been possessed by her husband, but also in the remainder on the decease of the doweress. The old English rule not allowing "dower out of dower" is therefore not applicable to the Isle of Man. The possession of a mortgagee will not prevent a widow obtaining dower. A widow is entitled to dower, and a husband to his curtesy in an equitable estate equivalent to the same rights in a legal estate. After these observations upon the seisen requisite to confer dower, it would not be proper to pass without notice an important case on the subject lately decided by the Chancery Court of this Island. In the case of Lucas v. [80] Lucas decided in 1862, the following points arose:— Lucas deceased conveyed certain lands to trustees in trust to apply rents until certain mortgages should be thereby discharged, and thereafter in trust for Robert Lucas, his heir presumptive in fee. During the application of the rents, and shortly before they finally discharged the mortgages Robert Lucas died. The Plaintiff, his widow, claimed dower; the defendant, his heiress at law, by her guardians resisted. The Court decided that the fact of the estate of Robert Lucas being equitable would not have prevented plaintiff's dower attaching, but that inasmuch as her husband had not been in or entitled to possession, she was not dowable; An appeal was entered, but not prosecuted, the plaintiff not being able to procure the necessary bail.
With all respect to our Court of Chancery, the writer (in common with several leading members of the Bar) ventures to question the correctness of the decision.
The estate of interest prior to that of Robert Lucas was technically a mere estate for years (id certum est quod certum reddi potest) and not an estate of freehold, and consequently not sufficient by the law of England, and much less so by the law of the Isle of Man when the cases of Cannan v. Cannan and Clucas v. Clucas are considered, to prevent the widow being entitled to dower out of the estate of the husband.
[81] If the decision in Lucas v. Lucas be law, then the writer is unable to find any argument to justify the al1owance of dower in lands belonging to a husband, but in possession of a mortgagee under a Manx mortgage or bond and security, or in fact in any lands liable to a common security, though remaining in possession of the husband, as in law the lands are deemed to be in the possession of the mortgagee, the mortgagor if remaining in possession being held legally to be tenant at will to the mortgagee (Keech v. Hall, 21 Doug., Broadbent v. Skillicorn, Deemster's Court, 1857, and Hunt v. Okell). The limitation in the habendum of a common Manx deed of mortgage or security — to hold until principal and interest shall be paid — is almost the same in words, and certainly is the same in legal effect, as the limitation for the payment of the incumbrances in Lucas's settlement. The estates created by such limitation are simply estates for years (see chapter on Mortgages).
The opinion entertained by the writer and the members of the bar referred to, vas shared by the eminent counsel Mr Lewin, author of "Lewin on Trusts," to whom a case was submitted, and who advised an appeal.
There still remains to be considered the respective rights of husband and wife in lands purchased for value. And first the dower of a wife in the purchased lands of her husband. By the Common Law a wife had power to devise by her will in her husband's life time one-half of his bought lands to any person she might think proper. This power was by the Act of 1777 [note 9] restrained and con- [82 fined to be exercised in favour of her husband or issue only, if she predeceased her husband. Now, by the Act of 5th July, 1852, [note 10] this power is altogether extinguished, and on her decease, leaving him surviving, all his purchased lands remain absolutely to the husband as his sole and absolute property.
The last mentioned Act does not, however, affect the rights of a woman surviving her husband married before the 5th January, 1853. [note 11] Her rights remain as defined by the Act of 1777, and consist of a moiety in fee simple of her husband's bought lands, subject to one-half of his debts in default of personal estate.
The interest of a widow married since the 5th Jan., 1853, surviving her husband,. is as fixed by the late Act, before referred to, an estate for life (not determined by second marriage) in one-half of her husband's bought lands, and no distinction is made by the Act between first and subsequent wives. [note 11]
[83] The husband has no power to grant a lease of his bought lands for a term in possession exceeding twenty-one years, and not even for that period unless a full rent be reserved, so as to affect his wife or her heir at law. [note 12] In Watterson v. Watterson (Chancery 1846) a lease granted for 21 years at under value was set aside as against the heir at law of the deceased wife of the lessor. Beyond a lease for value, and not exceeding 21 years in duration, he has no power to bar or charge her dower in his purchased lands by any conveyance or by his will. Her rights, however, are subject to his debts, and consequently a husband can indirectly charge or prevent his wife obtaining dower out of these lands in the same manner as before described respecting lands acquired by him under settlement from a person of whom he was not the next heir.
Secondly: The interest of a husband married since January, 1853 in his wife's bought lands is clearly defined by the Act of 1852 to be a life estate in one moiety, but the interest of a husband married before January, 1853, in his wife's bought lands is not very easily ascertained. The construction given to the Act of 1777, by the decision of the full Court of Common Law in a recent case (Isdale v. Morrison) is that the words "the whole goods and chattels purchased lands and premises" in the Act include the purchased lands of the wife as well as of the husband, and that, consequently , the husband became entitled to half of her lands which he might dispose of as he should think [84] proper, and, in default of a disposition, that on his death they would descend to his heir at law, and as to the other half that the same remained to his wife as her absolute property, provided that if she predeceased her husband she had a disposing power restrained to be exercised either in favour of her husband or her issue by him, and if not exercised her half descended to her eldest son by her last marriage. If she died without issue of the marriage the whole of her purchased lands fell to her surviving husband. Such was the construction given to the clauses of the Act of 1777, which are repealed by the Act of 5th July, 1852, which also enacts that the repeal shall not revive law or custom.
Now, what is the extent of the rights of a husband married before 5th January, 1853 in the purchased lands of his wife? The Act of 1852 is silent and does not define it. The Act of 1777 is repealed and the former law not revived. The writer confesses his utter inability to form an opinion on the subject. Personally he questions the application of the Act of 1777 to the purchased lands, certainly to the purchased Quarterlands, which had not been chattels since 1662, of the wife. The object of the Act is as stated in its title~ "to ascertain the interest of a wife in the estate of her husband." In England, as the title is not affixed to an Act until after it is passed the title is considered no part of the Act, but contra in the Isle of Man, where it is part of the Act before promulgated. In the Isle of Man, therefore, the writer thinks that the title should be referred to in assisting the construction as to the intended scope of the Act. [85] Supposing his view to be correct, he presumes that the Customary Law existing before the Act of 1777 would operate to give to the husband and wife each a moiety of her chattels or bought lands, which would be devisable by will by each of them, or in default would descend to the heirs of each, she having (as the writer conceives) as great a legal right to dispose by will in his lifetime of the moiety of her own lands as she had to dispose of a moiety of his. [note 13]
In all cases during coverture the husband has the exclusive control and possession of the profits of his wife's lands. In the construction of the Act of 1777 and the words "lawful issue," and "lawful issue of the body" of the wife used in that Act, [note 14] the Courts of the Island held first that lawful issue of the last marriage and not of a former marriage was meant; and, secondly, that these words were confined to children and did not include grandchildren (Jabez Cain, Lib Plitor, 1850.) By what possible rule of construction these decisions can be reconciled with the Statute is beyond the power of the writer to ascertain. This construction of "issue" and "issue of the body" is contrary not only to the common and grammatical sense of the words, but also to the technical meaning, and the restriction of the issue to that of the marriage is against the clear words and intention of the Act. The words as heretofore accustomed in favour of the lawful [86] issue of her body," clearly refers to the issue in favour of which by the custom she would previously devise, viz., any issue of herself. By the custom she had power to devise to strangers. The intent of the Act was to limit her power to her own issue. Fortunately by the alteration of the law by the Act of the 5th July, 1852, the Judges of our Courts will probably not be called on to follow these anomalous judgments of their predecessors.
Note 1: The lands referred to have been considered as being in the like position in all respects as inherited lands, except that they were liable to be taken in execution for debt.
Note 2: By the Real Property Act, 1869, sec. 1, all lands were made liable to be taken in execution for payment of debts (Revised Statutes, vol. III, p. 471).
Note 3: The term "curtesy" is not commonly used in Manx Records. The terms "dower" and "widowright" are frequently used with respect to the right of a husband in the lands of his deceased wife.
Note 4: In the case of Lewin v. Killey and others (re Lewin's Will) heard in the Staff of Government Division of the Insular High Court of Justice on the 27th April, 1897, it was held that the husband of a deceased wife who had died without issue, was not by the ancient Common Law of the Island entitled to any right of Dower or Curtesy in the lands of his deceased wife. In this respect the decision varied the judgment appealed from. On appeal to Her Majesty the judgment of the Staff of Government Division was affirmed, but it does not appear that there had been any argument as to the question of dower, and no Case on behalf of the husband had been cited. The matter involved important questions as to the construction of a Will. Deemster Parr in his MSS treatise on the laws of the Island (title "Wives") says it is the custom of the Island that where a man marries an Inheritrix, and she dies having left lawful issue, the man retains the like benefit in her lands as that of a woman in ihe lands of her deceased husband, save only that he shall not forfeit his widowright in the estate upon any miscarriage, but only upon condition of some capital crime of felony or the like.
Note 5: This statement of law was recently questioned, and was denied by Deemster Gill to be good.
Note 6: Revised Statutes, vol. I, p. 334.
Note 7: Revised Statutes, Vol. I, p. 41. — "Book of spiritual laws and customs" 11. This customary law was in effect repealed by Act of 1777, chapter 13. sec. 1. Revised Statutes, Vol. I, p. 333.
Note 8: But he must have been entitled to possession.
Note 9: Revised Statutes, vol. I, p. 333, "An Act for ascertaining the interest of a wifc or widow in the estate of her husband."
Note 10: Revised Statutes, Vol. 2, p. 322. — "An Act to repeal certain parts of an Act entituled, 'An Act for ascertaining the interest of a wife or widow in the estate of her husband; and to amend the same by substituting other provisions in lieu thereof". This Act was promuigated on the 5th July, 1852.
Note 11: Section 2 provides that nothing in the Act shall extend to affect thc rights of any woman surviving her husband, who sha11 have been married before the promulgation of the Act, or shall be married within six months after the promulgation. Section 3 defines the rights of the widow of a husband who shall have married subsequent to the expiration of six months after the promulgation of the Act, in her husband's personal estate and in her husband's purchased lands. And also the rights of a husband on the death uf his wife, who shall have married subsequent to the aforesaid period, in the lands of the wife purchased before the marriage. The date in the text, 5th January, 1853, is the termination of the period of six months from the promulgation of the Act.
Note 12: Act of 1777, sec. 6, Revised Statutes, vol. I, p. 334.
Note 13: See preamble to Act of 1777. Revised Statutes, Vol. I, p. 333.