Bracton: Thorne Edition: English. Volume 3, Page 399

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Volume 3, Page 399

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[001] as¹ provided by the new constitution,² that the woman should recover damages
[002] with her dower against whomever is in possession, especially with respect to the
[003] lands and tenements of which her husband dies seised as of fee, unless the deforciant
[004] has just cause for deferring the exaction of dower,³ which may arise if the husband
[005] has enfeoffed someone in his lifetime, and after his death the woman claims dower
[006] against him who holds; the delay will not be wrongful to the woman if he vouches
[007] a warrantor, one or several, until the heir, the woman's warrantor of her dower, is
[008] reached, that he may give escambium to the tenant,⁴ [who] if he warrants and immediately
[009] restores need not refund damages,⁵ since he is free of culpa, nor a fortiori
[010] need the tenant. It is otherwise⁶ [if] he seeks frivolous postponements, for [he who]
[011] fraudulently delays ought to restore damages. And so if, when the ancestor dies
[012] seised, the heir at once fraudulently enfeoffs others; both shall refund damages, the
[013] heir as well as the feoffee, because of the fraud, the one because of the fraudulent
[014] alienation, the other because of the fraudulent detention. And therefore the time
[015] when the alienation or gift was⁷ made must be considered, whether in the husband's
[016] lifetime or after his death and, [if] he who is bound to restore is guilty of delay,
[017] [and] whether it is rightful or wrongful, for he who is without fault ought not to
[018] suffer punishment.]⁸ There is also another form of the writ for giving her seisin, where
[019] her dower was acknowledged to her in court, which is this:

If dower is acknowledged and rendered to her in court.

[021] ‘The king to the sheriff, greeting. Know that when in our court etc. A. the wife of
[022] B. claimed against C. so much land with the appurtenances in such a vill as her dower,
[023] the same C. came into our same court and before our same justices etc. acknowledged
[024] and rendered the aforesaid land to the said A. as her dower. Therefore we order you
[025] etc. (as above).’⁹ It is clear that the deforciant is always liable to the woman to the
[026] extent of her damages with respect to the lands and tenements of which her husband
[027] dies seised if she is obliged to implead him¹⁰ for her dower, unless¹¹ he has just cause
[028] for resisting, since immediately and without plea after the death of her husband,
[029] at least within forty days, the dower constituted her on the marriage day is to be
[030] assigned her.¹²

How a woman may lose her dower after she is in possession and for what reasons.

[032] When a woman has obtained her dower she may lose it in many ways, as¹³ by custom,
[033] which is observed as law in divers places,¹⁴

Notes

1. ‘ut’

2. Merton, ca. 1; Cal. Cl. Rolls 1234-37, 337; supra ii, 276

3. Supra 357

4. ‘ut escambium faciat tenenti,’ from line 9

5. Infra 402

6. ‘Secus’

7. ‘fuit’

8. Supra ii, 290

9. Supra 375, 398

10. ‘eum,’ as V only

11. Om: ‘ipse heres’

12. ‘assignanda fuerit,’ as supra ii, 280; Magna Carta (1215) ca. 7; (1225) ca. 7: ‘infra [quadraginta dies] assignetur ei dos sua, nisi prius ei fuerit assignata’; supra ii, 275

13. ‘ut’

14. Supra ii, 27