Bigelow v. Hubbard

Gkay, J. The statute of uses, modifying the common law of England, allowed dower to be barred by a jointure, made before marriage, of a freehold estate, for the wife’s life at least, to take effect immediately upon the husband’s death; but provided that no jointure made during coverture, except by act of parliament, should prevent her from electing upon the death of her husband to claim her dower; and did not permit dower to be barred by a collateral satisfaction, consisting of money or other chattel interests. St. 27 Hen. VIII. c. 10, §§ 6, 9. Britton, (ed. 1865,) vol. L, pp. xli., xlii. & notes ; vol. II., pp. 237 note, 240, Bac. Ab. Jointure. 4 Kent Com. (6th ed.) 54 et seq. These provisions of the statute of uses were part of our common law. Hastings v. Dickinson, 7 Mass. 153. They have 198 been in substance and principle preserved in the existing enactments, which were first introduced in the revision of 1836, and which, while they allow a pecuniary provision to take the place of a jointure, affirm the right of the wife, if any such jointure or provision in lieu of dower is made before marriage without her consent, or after marriage, (while she is incapable of consenting,) to elect, upon her husband’s death, to waive it, and be endowed of his lands. Rev. Sts. c. 60, §§ 8-10, and commissioners’ notes. Gen. Sts. c. 90, §§ 9—11. It follows that the submission and award and the subsequent transactions, of which evidence was offered at the trial, did not deprive Mrs. Hubbard of the right to claim her dower after her husband’s death. That right was an existing incumbrance, which was a breach of the covenant against incumbrances in the defendant’s deed. Shearer v. Ranger, 22 Pick. 447. The defence relied on cannot therefore prevail, and as no question is made of the amount of damages, the judgment must be Exceptions overruled.