Bracton: Thorne Edition: English. Volume 3, Page 387

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Volume 3, Page 387

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[001] facto in England; she in England will obtain because of the failure of the other, who
[002] cannot prove. If within the realm he marries one wife de jure and another de facto,
[003] with whom he remains, and the lawful wife, though within the realm, does not
[004] denounce the marriage by claiming him as her husband, she will be prejudiced forever;¹
[005] if she claims dower after the death of her husband, she who is² in possession
[006] of her husband at the time of his death will obtain.

Of the two women claiming dower by reason of one man.

[008] Suppose she does claim him as her husband, when the unlawful wife is in possession.
[009] If the woman-demandant dies in the lifetime of the husband, she who is in possession
[010] will obtain. If it is the husband who dies, before he is deraigned, by denouncing the
[011] marriage her action with respect to obtaining dower is preserved [and she will
[012] obtain], especially if her children are legitimate³ and obtain the inheritance in [an
[013] action] of succession.⁴ And so even if the marriage is not challenged in the lifetime
[014] of the husband, because if her children acquire the inheritance, she will thereby
[015] obtain dower. If when she denounces the marriage and then obtains by judgment,
[016] an appeal from the judgment is taken by the husband, who dies while the appeal
[017] is pending, her action for claiming him as her husband is extinguished, but if the heirs
[018] obtain the inheritance, she will thereby obtain dower, as above. But if in the appeal
[019] judgment is given for the husband-appellant, and the woman demandant appeals
[020] from that judgment, or from a first,⁵ and he dies before the woman's appeal is decided,
[021] her action falls against the husband, but she will obtain dower through the
[022] heirs [according as they obtain the inheritance] or not, as above. If she does not
[023] appeal from the judgment in the appeal, she will never obtain dower, [unless the
[024] heirs obtain in an action of succession.] But if the judgment is for the woman and not
[025] appealed by the man, though he refuses to accept her after judgment and dies
[026] refusing to obey it, it will suffice to entitle her to dower, if her heirs are afterwards
[027] deemed legitimate, but the claim of dower will always be in suspense until the legitimacy
[028] of her heirs is established.

An exception lies because of the words ‘she claims,’ for the reply may be made that her claim is void because her husband had no right in that land, either on the day he espoused her or afterwards, so that he could endow her.

[030] The writ says ‘such a one claims against such a one so much land as dower.’ With
[031] respect to the word ‘claims,’ the tenant has the exception that she cannot claim, for
[032] this reason, because her husband had no right in that land, because it was the right
[033] of another, namely of his first wife, as her inheritance or maritagium. If the womandemandant
[034] cannot deny this she will lose the dower. If she replicates to the contrary,
[035] [the truth] will be declared by an inquest. [Or that she cannot claim] because she
[036] remitted and quitclaimed her dower, and

Notes

1. Supra 386

2. ‘fuerit’

3. ‘legitimi’

4. ‘et hereditatem obtinuerint in causa successionis,’ as below

5. ‘prima’