Bracton: Thorne Edition: English. Volume 3, Page 394

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Volume 3, Page 394

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[001] granted to her husband, but nothing from the other half, because her husband
[002] never had that land so in fee that he could endow a wife, because his seisin was of
[003] another's right. But what if the older brother dies first, the younger surviving? His
[004] wife will only recover dower from the half her husband retained, for though the
[005] acknowledgment was made of the right of the whole inheritance, of half of the thing
[006] she claims her husband was never in seisin, only of the service. If, as said above, the
[007] women demandants are asked to produce the warrantors of their dowers, they can
[008] produce no one except the heir of the deceased who is bound to warrant their dowers
[009] to them. But if the younger brother, when he was impleaded for the whole, acknowledged
[010] the whole¹ to be the demandant's right, and remitted it [to him], his wife will
[011] not recover dower, because that acknowledgment did not proceed from deceit,
[012] hatred or greed, but [was] of another's right. This case is similar to that between
[013] John de Breuse the son of William de Breuse, the older brother, and Reginald de
[014] Breuse the younger brother, against whom Matilda de Clare, the wife of the aforesaid
[015] William, claimed dower from the half which remained to the aforesaid Reginald,
[016] the younger brother, by a concord made between him and the aforesaid John his
[017] nephew.² What is said is true of a doubtful thing, that she will recover her dower in
[018] view of the doubt, because of the uncertainty, because when there is a doubt her
[019] husband may equally well acknowledge and remit his own right as another's,³
[020] but not so in the case above, because there a certainty is acknowledged and remitted.
[021] That is the reason why a woman may claim dower of a thing acknowledged by
[022] concord, because her husband may equally well remit his own right as another's.⁴

If the husband has aliened his land before marriage.

[024] The tenant may also concede that her husband was seised as of fee and of right and
[025] so in demesne that he could endow her, but except that her husband aliened the thing
[026] from which dower is claimed before he married her, so that on the marriage day he
[027] was not [so] seised that he could endow her thereof, since he had previously given it
[028] to another in fee, to him and his heirs, or for life in some way, or in fee subject to the
[029] condition, tacit or express, that the thing given revert for failure of heirs, as in free
[030] marriage,⁵ or subject to some other condition by which it would remain if the condition
[031] were satisfied or revert if it failed to occur. [Or] that the thing from which
[032] she claims dower was previously assigned⁶ to another woman, still alive, or if dead,
[033] that it was not delivered in her husband's lifetime,⁷ ⁸<as may be found in the eyre

Notes

1. ‘totum’

2. Names altered; B.N.B., no. 46; C.R.R., viii, 11; xi, no. 390; xiii, no. 133

3. Supra ii, 272

4. Om: ‘Sed quod . . . incerta,’ redundant

5. Supra ii, 68, 76, 82, 144, 267

6. ‘assignata’

7. Supra ii, 268

8. Supra i, 409