Bracton: Thorne Edition: English. Volume 2, Page 272

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Volume 2, Page 272

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[001] (since it ought to be certain and so constituted it is uncertain) since it depends on
[002] the snares of fortune, and it may well be that he will never make an acquisition,
[003] ¹nor ought a wife to be left unendowed.² And though he makes³ an acquisition, the
[004] constitution is confined to the lawful constitution of a third part or a half, according
[005] to local custom and the varieties of tenements. ⁴Dower may be constituted in the
[006] lands and tenements one holds in fee to himself and his heirs,⁵ not in those held
[007] for a term of life or years,⁶ nor if, though he holds in fee, he holds in such a way
[008] that another has the right and can recover the property, for if it is recovered by
[009] judgment the wife's action of dower will fail, though she was endowed thereof,
[010] since the judgment will make it clear that her husband was not [so] seised thereof
[011] in demesne, [and] though seised as of fee not so seised in fee that he could endow
[012] his wife.⁷ Thus one cannot endow his wife effectively of another's right, because of
[013] the recovery, but when a husband endows his wife of a thing certain and another
[014] claims it and, before judgment, the husband acknowledges and renders it to him by
[015] agreement, if the wife claims it after her husband's death her right to exact it will be
[016] unimpaired, according to some, who are moved by this reason, that the husband
[017] may equally well be remitting his own right as another's,⁸ and in view of this
[018] doubt she will obtain dower where there has been any acknowledgment or reddition
[019] by way of amicable settlement. But others say that he may equally well be
[020] acknowledging another's right as his own, though there has been no judgment.⁹
[021] In cases of this kind, when the wife claims dower in the thing acknowledged
[022] and it is excepted against her that she ought not to have it since her husband, on
[023] the day he married her, was not so seised thereof in demesne and in fee that he
[024] could endow her, and she to the contrary, that he was, it appears, and it is true,
[025] that since the matter is rendered doubtful by the denial there is room for an inquest,
[026] despite the acknowledgment and agreement, ¹⁰[as may be seen by an example.
[027] Suppose one has enfeoffed another and, the feoffee having died, his heir within age,
[028] the wardship of the land and the heir comes into the hands of the chief lord, who
[029] during his wardship enfeoffs another of that land, who, on marrying a wife,
[030] constitutes her dower in that property. When the heir comes to full age he
[031] impetrates an assise of novel disseisin or mortdancestor or a writ of entry or of right
[032] against the tenant. The tenant, whether he has vouched his warrantor or not, before
[033] judgment, after the right has been established, or perhaps even though it has not,
[034] acknowledges the demandant's right, restores seisin to him and dies.]¹¹

Notes

3. Om: ‘non’

1-2. Reading: ‘nec uxor esse debeat indotata. Et cum ...’ as Fleta (v, cc. 23, 18: ‘cum esse poterit quod nunquam faciet perquisitum et uxor indotata esse non debet’ and Britton (ii, 242) ‘pur ceo qe bien porra estre qe le baroun james terre ne purchasera et la feme ne doit mie estre dowarie.’

4. New paragraph

5. Supra 267

6. Ibid.

7. Infra iii, 387, 390, 392, 393

8. Infra iii, 393, 394

9. The example infra nn. 10-11 belongs here

10-11. Supra n. 9