Whoever happens to be in possession of the Dower, whether the Heir or another person, the Heir ought always to be present to answer the Woman claiming her Dower. If, therefore, a stranger, and not the Heir, deforce the Woman of her Dower, he shall be summoned by this Writ; but the Heir shall be summoned by the former Writ.
CHAP. XVII.
The suit between the Heir and the Widow, may be infinitely varied. For the Woman will either claim her Dower, as named, or her reasonable Dower as not named. The Heir also may admit that her Dower was named, but that it differs from that she demands; or he may allege, that no Dower was specified.
If the contest between them be concerning Dower which was named, or concerning different nominations of it, then, the Plea may proceed in the manner we have above described. But if a reasonable Dower be demanded, no specific nomination having been made, the Law is perfectly clear, that the Heir is bound to assign to the Woman as her Dower, a third part of all the freehold Tenements that his Ancestor held in his Demesne, on the day of the Espousals, and this unreservedly, in every thing, as in Lands, and Tenements, and Ecclesiastical Advowsons,[184] so that if there should be but one Church in the whole Inheritance, and such happen to fall vacant in the life of the woman, and after the death of her Husband, the Heir shall not, without the Assent of the woman, present a Parson to such Church. From the generality of this Rule we must except the Capital Messuage, which cannot be given in Dower, nor can it be divided, but shall remain entire.[185] Nor shall a division be made of those things which other women, who have been previously endowed, still hold in Dower.[186] Besides, if there should be two or more Manors to be divided, the Chief Manor shall not be divided, but, together with the capital Messuage, shall remain entire to the Heir, so that the Widow shall be fully satisfied from the other Manor or Manors. It should also be remarked, that the Assignment of the Dower shall not be postponed, on account of the Infancy of the Heir. In addition, should any Land have been given by name to a Woman, in Dower, and should a Church have been founded in that Fee, the Woman, after the death of her Husband, shall have the free Presentation; so as to have it in her power, in case such Church should become vacant, to bestow it upon any proper Clerk.[187] But she cannot confer it upon a College,[188] because, by so doing, she would for ever destroy the Right of the Heir.
But if the Husband of the woman happen in his lifetime to bestow the Church upon the Clerk, the latter shall, during the whole of his life, retain such Church; although he were presented subsequently to the period when the woman was endowed of that Land. If, however, the Husband should, in the interval, bestow the Church upon any religious House, the Church ought, after the death of the Husband, to be delivered to his Widow, so that in the course of her life she may have a free Presentation.[189] But, after the death of the woman, and of the Clerk instituted Parson upon her Presentation, the Church shall revert to the religious House, and shall for ever after so remain. It may also be observed, that if the wife should, in the lifetime of her Husband, be separated from him on account of incontinence, the Woman shall not be heard upon a claim of Dower.[190] The same rule prevails, if she be separated from him on account of Relationship[191]—she shall be debarred from claiming her Dower. And yet her children may inherit, and, by the Law of the Realm, shall succeed to their Father by hereditary Right.[192] Observe also, that when the Son and Heir of any one marries, with the consent of his Father, and, by the Assignment of his Father, endow his Wife with a certain part of the Land of his Father,[193] it may be questioned whether the Wife can demand any more as dower?[194] If her Husband die previously to his Father, it may be doubted, whether she can retain the Land in question, as her Dower, and whether the Father of her Husband be bound to warrant such Land to her?[195] If a woman have more Land in Dower than she ought, that is, more than belongs to her, let the Sheriff be commanded to admeasure it, and for this purpose the following Writ shall issue——
CHAP. XVIII.
“The King to the Sheriff, Health.[196] N. complains to us, that A. his Mother, has more in Dower of his Inheritance, than she ought to have, and than belongs to her to have, to wit, her reasonable Dower. Therefore, I command you, that justly and without delay, you cause it to be admeasured; and that, justly and without delay, you cause the said N. to have what he ought of right to have of his inheritance; and, justly and without delay, cause the said A. to have what she ought to have, and what belongs to her to have, to wit, her reasonable Dower, least he should again complain for want of Justice. Witness, &c.”