Bracton: Thorne Edition: English. Volume 2, Page 97

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Volume 2, Page 97

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[001] for the homage and service of the husband, which sometimes is done, [provisions]
[002] which are inconsistent with one another, though it is given in free marriage,¹ the
[003] homage is preferred and it will be as though it had been made to the husband and
[004] wife together. If the wife makes a gift of her husband's property without his assent,
[005] restitution lies for the husband by the assise of novel disseisin or by writ of entry,
[006] just as it does for any other person, that is, ‘that she aliened without his consent.’
[007] But conversely, if the husband makes a gift of his wife's property it will never be
[008] revoked during the life of the husband, since a wife may not dispute her husband's
[009] acts.² If the husband gives a thing given them both, the wife may not recall her
[010] husband's gift during his lifetime, but if she makes a gift [of such property], the
[011] husband may revoke it [at once].

Whether a husband may make a gift to his wife during marriage.

[013] It may be asked whether, during marriage, a husband may make a gift to his wife
[014] or a wife to her husband, [An arrangement may be taken to be a marriage whether
[015] it has been publicly contracted or faith [has been so] pledged that the parties may
[016] not be separated.]³ and in truth, gifts between husband and wife during marriage
[017] ought not to be good,⁴ and the reason is lest they be made because of the lust or
[018] the excessive poverty of one of the parties.⁵ That such gifts are invalid is proved in
[019] the roll of Michaelmas term in the fifteenth year of king Henry in the county of
[020] Lincoln, [a case] from the eyre, an assise of mortdancestor [beginning] ‘if Helewisa,’⁶
[021] to whom a certain Eudo had made a gift after he had promised to marry her and
[022] with whom he later publicly contracted marriage, where the heirs of Helewisa
[023] took nothing by an assise of mortdancestor brought on the seisin of the said
[024] Helewisa. To the same intent [in the roll] of Trinity term in the seventeenth year
[025] of king Henry in the county of Norfolk, [the case] of Petronilla, wife of William of
[026] St. Martin,⁷ who, after her husband's death, was ejected from a tenement so given
[027] her and could not recover seisin by an assise of novel disseisin because the gift
[028] and the feoffment were void ipso jure. To the same intent [in the roll] of Hilary
[029] term in the eighth year of king Henry in the county of Nottingham, [the case] of
[030] Robert of Wallegha and Joanna his wife,⁸ where it is said that such a gift is
[031] invalid, particularly because the wife to whom it was made never had seisin before
[032] espousals and because her husband died seised and because the land never was
[033] separated from the other lands of her said husband. But what if such a gift is made
[034] after divorce? It is good and valid.⁹ But if a gift of this kind may not be made
[035] directly by a husband to a wife during marriage, or conversely,

Notes

1. Supra 80-81, 147

2. Infra 275

3. Infra iv, 305

4. Supra 54

5. C. 5.3.20.4: ‘et propter alias causas et libidinem forsitan vel unius partis egestatem’

6. B.N.B., no. 659; no roll extant

7. B.N.B., no. 777; no roll extant

8. B.N.B., no 224; no roll extant

9. Supra 54