Dower - Definition - Law Dictionary Home Dictionary Definition dower

Definition :

Dower [fr. dos, dotis, Lat., a marriage gift; dotare dower, Fr., endow, to furnish with a marriage portion. Dotarium, M. Lat., dotaire, Prov.; douaire, Fr.; a dowry of marriage provision; douairiere, a widow in possession of her portion, a dowager], the right which a wife has in the third part of the lands and tenements of which her husband dies possessed in fee-simple, fee-tail general, or as heir in special tail, which she holds from and after his decease, in severalty by metes and bounds, for her life, whether she have issue by her husband or not, and of what age soever she may be at her husband's decease, provided she be past the age of nine years.

The legal estate in dower (being an estate for life) has been abolished and converted into an equitable interest (ibid.), (English) L.P. Act, 1925, s. 1; it can only arise in respect of deaths after 1925 in case the deceased husband was a lunatic or defective on January 1st, 1925, and died without regaining testamentary capacity or before his committee or receiver was discharged, see (English) A.E. Act, 1925, ss. 45(1)(c) and 51 (2), or in the construction of equitable interests under s. 130, (English) Law of Property Act, 1925, as an entailed interest according to the old law. Although the (English) Dower Act, 1833, has been repealed by the A.E. Act, 1925, s. 45, for deaths after 1925, it is not apparent that the Act does not form an integral part of the old law. Where dower has been assigned by metes and bounds the widow would apparently be a tenant for life within the meaning of s. 1(4) of the (English) S.L. Act, 1925. Except as against an infant entitled in possession, in which case a settlement arises, a dowress, otherwise than by metes and bounds, apparently retains a share in the land (if the dower has arisen before 1926) analogous to an undivided share, see Williams v. Thomas, (1909) 1 Ch 713; and Wolst. & Ch. Conv. Acts, 12th Edn. P. 941. The following note has been preserved verbatim owing to the importance of the subject in relation to titles existing before 1926.

The original law of dower became among our ancestors, with the increase of alienation, highly inconvenient and obstructive of the free course of conveyances. The legislature by the 27 Hen. 8, c. 10 (the Statute of Uses), set about a method of diminishing the evil by providing a jointure in lieu of dower. By effect of this statute no widow can claim both jointure and dower. See JOINTURE.

But this statuable bar was found highly incon-venient, and recourse was had to many ingenious devices to prevent or defeat dower; but they were all more or less imperfect, and at length gave way to the universal practice of making an artificial form of a conveyance, on a purchase of land, which obtained the name of a 'conveyance to uses to bar dower.' The land was conveyed to such uses as the purchaser should appoint, and in default of appointment, to him for life, and on the determina-tion of his estate in his lifetime, to a trustee and his heirs for the life of the purchaser in trust for him, and on the determination of the estate of the trustee, to the purchaser and his heirs.

An equitable bar of dower was deemed sufficient as between vendor and purchaser; as if a wife contract before marriage to relinquish her dower, either in consideration of a substituted provision or of marriage, which is valuable in itself and the highest consideration known to the law.

The Report of the Real Property Commissioners led the way to the passing of the (English) Dower Act (3 & 4 Wm. 4, c. 105), which places a wife's right to dower entirely at the mercy of her husband. This Act (now repealed by the (English) A.E. Act, 1925, s. 56, 2nd Sched., Part I.), in regard to deaths after 1925, after attaching dower, which formerly was attached to a legal estate only, to an equitable estate also, enacts that'

No widow is entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his Will (s. 4). A widow is not entitled to dower out of any land of her husband when, in the deed by which it was conveyed to him, or any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land (s. 6). The widow's right to dower is subject to any conditions, restrictions, or directions which shall be declared by her husband's Will (s. 8).

These sections contain the essential alterations made by this Act, and put the widow's dower altogether in the husband's power.

The Act does not extend to the dower of any woman married on or before the 1st January, 1834, and does not give to any will, deed, contract, engagement, or charge executed, entered into, or created before that day, the effect of defeating any right to dower.

No arrears of dower, nor any damages on account thereof, are recoverable by action or suit for more than six years next before the commencement of such action or suit by the (English) Real Property Limitation Act, 1833 (3 & 4 Wm. 4, c. 27), s. 41. An action for assignment of dower is not within this Act, though the Court may refuse relief on the ground of laches, Williams v. Thomas, (1909) 1 Ch 713.