II. The Widow’s Share of Personal Estate. The chapter of the Charter at present under discussion says nothing as to the widow’s right to any portion of her deceased husband’s goods and chattels. Chapter 26, however, confirms the existing law which secured to her, in the normal case, one third of her husband’s personal estate, as will be more fully explained hereafter.
III. Provision for the Widow’s immediate Needs. Many intricate questions might arise before it was possible to divide the land into aliquot portions and so “assign” the exact one-third due to her. Meanwhile, temporary provision must be made for her support. This was of two kinds: (1) Quarantine. Magna Carta confirmed her right to remain in the family home for a space of forty days. This was known to later lawyers as the widow’s quarantine.[[425]] The Charter of 1216 notes an exception to the general rule, on which John’s Charter is silent: if the deceased husband’s chief place of residence had been a castle, the widow could not stay there; feudal strongholds were not for women. In such cases, however, so the reissue of 1216 carefully provided, another residence must be immediately substituted. In later days, widows unlawfully deprived of their quarantine were provided with a remedy by means of a writ, known as “de quarentina habenda,” directing the sheriff to take summary procedure to do her right.[[426]]
(2) Estovers of Common. The widow required something more than the protection of a roof; for, until her dower lands had been delivered to her, no portion of the produce of her late husband’s manors could be strictly called her own. The estate was held “in common” between her and her husband’s heir (or between her and the “guardian” of that heir’s estates). It was only fair that, until her rights were ascertained, she should be allowed a reasonable share of the produce. Neither John’s Charter nor the first issue of Henry III. said anything on this head. The reissue of 1217 supplied the omission, expressly confirming the widow of a Crown tenant in the right to rationabile estoverium suum interim de communi. Many explanations of the word estovers (generally used in the plural) might be cited: from Dr. Johnson, who defines it broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it to “firewood.”[[427]] It was the right to use certain parts of the natural produce of land or other property for the supply of one’s personal or domestic wants. Such rights varied in extent, however; from the general right to a full supply of all things necessary for the maintenance of life, down to the restricted right to take one kind of produce for one specific purpose only.[[428]]
It seems natural to infer that in this passage of Magna Carta the word bears its wider signification. Such was Coke’s view,[[429]] who held that it implied the widow’s right to “sustenance” of every kind, including the right to kill such oxen on the manor as she required for food. Estovers “of common” should thus be read as extending the widow’s right of consumption for her own and her household’s use over every form of produce held “in common” by her and the heir’s guardian prior to a final division.[[430]]
[414]. Cf. supra, 78–9.
[415]. See Pollock and Maitland, II. 422-3. The ceremony at the church door, when resorted to, was no longer an opportunity of giving material proof of affection to a bride, but a means of cheating her out of what the law considered her legitimate provision, by substituting something of less value.
[416]. Pollock and Maitland, II. 419.
[417]. See Pollock and Maitland, II. 15-16.
[418]. Liberum maritagium, considered as a tenure, has various peculiarities. The lady’s husband became the feudal tenant of her father. The issue of the marriage were heirs to the lands and would hold them as tenants of the heir of the donor. For three generations, however, neither service nor homage was due. After the third transmission, the land ceased to be specially “free”; the peculiar tenure came to an end; and the new owner was subject to all the usual burdens of an ordinary tenant.