Bracton: Thorne Edition: English. Volume 3, Page 380

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Volume 3, Page 380

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[001] may be proved in many ways, by a comparison of seals or by witnesses or by the
[002] country, and in many others, as above more fully [in the portion] on the authenticity
[003] of instruments.¹

If an instrument is offered to prove the modus of the constitution.

[005] But what if the instrument says that someone other than the husband endows the
[006] wife? A constitution of that kind will be invalid nor will a claim of dower lie, because
[007] of the words in the intentio, ‘and whereof such a one, her husband, endowed her
[008] etc.’ [This is true if the tenement is her husband's; it is otherwise if it is another's,
[009] as where one endows his wife at the church door of property belonging to his father
[010] or mother, or other kinsman, or a friend, whose consent is required, as where it is
[011] said ‘of which such a one, her husband, endowed her with the consent of his father
[012] or mother or other [relative or] a friend.’] Hence an instrument is incorrectly drawn
[013] [if it says] that the father or another endows the son's wife. [But there will be no
[014] incongruity if one looks carefully into the force of the constitution, for in order that a
[015] constitution of dower from the property of another may be valid, two things must
[016] join in the constitution, namely, the nomination and the consent,² for neither suffices
[017] without the other, because if the son nominates and the father does not consent, it
[018] will be invalid without the consent. If though the father consents the son does not
[019] nominate, the consent will be invalid without the nomination. Therefore a valid
[020] constitution is made by both conjoined. The instrument is not therefore to be
[021] rejected, because both endow, that is, the son by his nomination and the father by
[022] his consent. If the father's endowment does not fully suffice by itself, it is good, to
[023] the extent of consent, with the nomination.]³ But we must see if consent may be
[024] given before dower is constituted, by letters or in some other way, as⁴ where at the
[025] constitution it is said in the absence of the consenting party that he has assented,
[026] [or] when he has not consented, if it ought to be good by ratification. It seems [that
[027] it is good, relation being made of the consent to the church door,]⁵ that it ought not
[028] to be good when he is absent; if he is not it is good,⁶ because the nomination alone
[029] is of no value without the consent,⁷ nor [may dower be constituted] elsewhere than
[030] at the church door and in person.⁸

If she was endowed by consent of the father, mother or another.

[032] Since a son may endow his wife by consent of his father, mother, kinsman or friend,
[033] we must see how the constitution of such a dower is made, and whose assent is
[034] required. It is clear that it is the assent of everyone by whose assent the dower is
[035] constituted, with the assent and agreement of the mother as well as the father, as
[036] [in the roll] of Michaelmas term in the sixteenth and the beginning of the seventeenth
[037] years of king Henry

Notes

1. Supra ii, 62, 108 ff.; infra iv, 235 ff.

2. Supra ii, 274

3. Ibid.

4. ‘ut’

5. Supra ii, 273; B.N.B., no. 1335

6. ‘cum absens sit; cum absens non sit’

7. Om: ‘nec per se’

8. Om: ‘ita nec . . . personalis,’; cf. supra ii, 273: consent is valid whether it precedes or follows