27. A Bill concerning the Dower and Jointures of Widows
Be it enacted by the General Assembly, that a widow after the death of her husband, shall tarry in the mansion house of her husband and the plantation thereto belonging, rent free, until her dower shall be assigned her. And if she be thereof in the meantime deforced, she shall have a vicontiel writ in the nature of the writ de quarentin habend, directed to the sheriff, whereupon such proceedings and speed shall be used as hath or might have been used on the said writ of quarentine.
Whosoever shall deforce widows of their dowers of the lands whereof their husbands died seized, or of such mansion-house or plantation, if the same widows after shall recover by plea, they that be convicted of such wrongful deforcement shall yeild damages to the same widows, that is to say, the value of the whole dower to them belonging from the time of the death of their husbands unto the day that the said widows by judgment have recovered seisin of their dower.
In a writ of dower called ‘unde nihil habet’ the writ shall not abate by the exception of the tenant, because the demandant hath received her dower of another man before her writ purchased, unless he can shew that the dower, so received, was in satisfaction of her right of dower in the lands whereof she demands dower.
In case where the husband being impleaded for land by default, the woman after his death demanding her dower shall be heard. And if it be alledged against her that her husband lost the land whereof the dower is demanded, by judgment, whereby she ought not to have dower, and then it be enquired by what judgment, and it be found that it was by default, whereupon the tenant must answer, then it behoveth the tenant to answer further, and to shew that he had right and hath in the foresaid land according to the form of the writ, that the tenant before purchased against the husband: And if he can shew that the husband of such wife had no right in the lands, nor any other but he that holdeth them, the tenant shall go quit, and the wife shall recover nothing of her dower; which thing if he cannot shew, the wife shall recover her dower.
And where sometime it chanceth that a woman not having a right to demand dower, the heir being within age, doth purchase a writ of dower against a guardian, and the guardian endoweth the woman by favor, or maketh default, or by collusion defendeth the plea so faintly, whereby the woman is awarded her dower, in prejudice of the heir, it is provided that the heir, when he cometh to full age, shall have an action to demand the seisen of his ancestor against such a woman, like as he should have against any other deforcer. Yet so that the woman shall have her exception saved against the demandant, to shew that she had right to her dower, which if she can shew, she shall go quit and retain her dower, and if not the heir shall recover his demand. In like manner the woman shall be aided if the heir or any other do implead her for her dower, if she lose her dower by default, in which case the default shall not be so prejudicial to her, but that she shall recover her dower, if she have right thereto, and she shall have this writ. “Command A. that justly, &c. he render to B. who was the wife of F. so much land with the appurtenances in C. which she claims to be her reasonable dower, or of her reasonable dower, and that the aforesaid A. deforceth her &c.” and to this writ the tenant shall have his exception, to shew that she had no right to be endowed; which if he can verify, he shall go quit, if not, the woman shall recover the land whereof she was endowed before.
Also widows may bequeath the crop of their ground as well of their dowers as of other their lands and tenements.
But if a wife willingly leave her husband and go away and continue with her adulterer, she shall be barred forever of action to demand her dower that she ought to have of her husband’s lands, if she be convict thereupon, except that her husband willingly and without coercion reconcile her and suffer her to dwell with him, in which case she shall be restored to her action.
Also if any estate be conveyed by deed or will, either expressly or by averment, for the jointure of the wife, in lieu of her dower, to take effect in her own possession immediately on the death of her husband, and to continue during her life at the least, determinable by such acts only as would forfeit her dower at the common law, such conveyance shall bar her dower of the residue of the lands, tenements or hereditaments which at any time were her said husband’s.
But if the said conveyance were before the marriage and during the infancy of the feme, and the guardian hath not expressed his approbation thereof by becoming a party to the same conveyance,1 or if it were made after the marriage, in either case the widow may, at her election, wave such jointure and demand her dower.
When any conveyance intended to be in lieu of dower, shall, through any defect, fail to be a legal bar thereto, and the widow, availing herself of such defect, shall demand her dower, the estate and interest conveyed to such widow with intention to bar her dower shall thereupon cease and determine.
If a widow be lawfully expulsed or evicted from her jointure, or any part thereof, without any fraud or covin, by lawful entry or action, she shall be endowed of as much of the residue of her husband’s lands, tenements, or hereditaments, whereof she was before dowable, as the same lands, tenements, or hereditaments, so evicted and expulsed shall amount or extend unto.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 23–4. Text of the Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 162–5.
Bill was presented by Madison 31 Oct. 1785, passed by the House on 29 Nov., and approved by the Senate without amendment on 6 Dec. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 48, 62, 74, 133). The Bill was adopted precisely as proposed by the Committee of Revisors except for the addition of a final clause putting the Act into effect 1 Jan. 1787 and except for the omission noted below.
1. The words “and the guardian … to the same conveyance” are not in the Act as adopted.