Bracton: Thorne Edition: English. Volume 2, Page 267

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Volume 2, Page 267

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[001] reason,¹ but not if there is only a separation from bed and board.² Sometimes the
[002] heir gains the dower after the death of the husband, though it has been assigned, by
[003] the custom of cities and counties, as in Kent, London, Lincoln and elsewhere.³ It
[004] is clear that a maritagium given because of marriage always remains to the wife and
[005] her heirs, if she has heirs [of her body]. If she does not, it reverts for failure⁴ of
[006] heirs. In the same way paraphernalia⁵ remains to her heirs, of whatever kind.>

Of what thing.

[008] Of what? [It is clear that if a man has lands and tenements he may endow his wife,
[009] provided he does not exceed due measure, of whatever land he wishes, no matter of
[010] whose fee it is, though by so doing he deprives the chief lord of the wardship of his
[011] fee when the wife takes it as dower; he does him damage but no injuria, for though he
[012] has no wardship, relief suffices.⁶ On this matter may be found [in the roll] of Easter
[013] term in the twelfth year of king Henry in the county of Lincoln, [the case] of Idonea
[014] wife of Nicholas Burdet.]⁷ ⁸Of his own lands and tenements, those he holds in fee to
[015] himself and his heirs, ⁹whether by the causa of succession or acquisition,¹⁰ not if he
[016] holds them for a term of life or years or in any other way whatever, ¹¹as where it is
[017] said ‘I give you so much land,’ no mention made of heirs: the gift does not extend to
[018] heirs, only for the life of the donee, and because it is not in fee but only for life a
[019] petitio dotis fails.¹² [But] ¹³if he is enfeoffed, absolutely and without condition of any
[020] kind, to himself and his heirs, certain and specified¹⁴ or general, though (whether he is
[021] a bastard¹⁵ or legitimate) he does not have heirs, [or does not have heirs of the proper
[022] kind], or if he has them they have failed, so that the land must revert to the donor by
[023] tacit condition or express, his wife will obtain dower,¹⁶ because the gift is absolute
[024] from the beginning and an absolute feoffment, though destroyed by the tacit or
[025] express condition.¹⁷ But if he makes the gift in this way,¹⁸ ‘I give to you and your
[026] heirs, if you have such heirs,’ or ‘if you have them of such a wife,’ that gift is not
[027] complete from the beginning but dependent upon the snares of fortune, nor will it
[028] be complete until the condition is satisfied, until he has such heirs or has them of such
[029] wife; if he does not, there will be no fee, only a free tenement for life, and thus an
[030] action of dower will fail.¹⁹ But if he has such heirs or has them of such wife, though
[031] they fail subsequently, it begins at once to be a fee and a complete gift and an action
[032] of dower lies. In the first case [to him and his heirs, specified or general], the gift is
[033] absolute, but resolved under an implied or express condition.²⁰

Notes

1. Raymund, iv, 25.3; Tancred, 110

2. Infra iii, 363; D. 23.3.31

3. When mother remarries: infra 281, iii, 389, 400

4. ‘defectu,’ all MSS.

5. ‘res parapharnalis’

6. Supra 142

7. B.N.B., no. 279; C.R.R., xiii, no. 498

8. Om: ‘Item’

9-10. ‘sive ex causa ... perquisiti’ from lines 17-8

11-12. ‘ut si dicatur ... petitio,’ from lines 25-8

13. ‘si feoffatus ...’, line 19 ff.

14. Supra 144

15. Supra 76, infra iii, 361

16. Supra 68, 82, 144, infra iii, 394

17. Supra 81, 144

18. Om: ‘Si autem ... in donatione ita,’ lines 28-29

19. Supra 68-9, 144

20. Supra n. 17