Bracton: Thorne Edition: English. Volume 2, Page 277

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Volume 2, Page 277

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[001] if he has none but resists out of malice¹ he will restore to the woman-demandant
[002] all her ²damages, that is, the profit of the entire dower and [of everything] touching
[003] if from the time of her husband's death [and damages to the extent that it was to
[004] her interest to have her dower,] to the day she recovers her seisin by judgment;
[005] and the warrantor³ will be in mercy in addition.⁴ And so if, her whole dower being
[006] vacant on the day her husband dies, nothing alienated in his lifetime, the wife puts
[007] herself into her specified dower and is ejected therefrom before assignment,⁵ unless⁶
[008] she is satisfied without bringing an action and suffering delay. This must always be
[009] observed unless the heir or his guardian has just cause for resisting her claim.⁷
[010] And so if she is ejected from a tenement assigned her for her quarantine before
[011] dower is assigned her,⁸ whether that is done within the forty day period or after it.
[012] And so if she is kept from entering at all, so that she has not where to lay her head.
[013] ⁹If the whole dower is vacant and the heir has no wish to dispute it but wishes to
[014] restore it to her freely and without action, we must see what things are to be restored
[015] in the name of dower. If the constitution of dower made at the church door is of an
[016] unspecified part, of lands acquired and to be acquired, it will be proper for the ¹⁰heir
[017] to assign her in dower the third part of the whole free tenement his ancestor held in
[018] his demesne as of fee on the day he married her,¹¹ which he so held in demesne and
[019] fee that he could endow her, [This is true unless dower was constituted in some other
[020] way at the church door; the constitution must then be followed.] ¹²that is, of all
[021] lands and tenements in demesne, villeinages [and] military fees, the homages
[022] and services of free men,¹³ [and] the advowsons of churches.¹⁴ When those¹⁵ are involved,
[023] the assignment must be made completely, not by fractions or in parts,
[024] [and] according to the modus of the constitution,¹⁶ according as she has been
[025] endowed specifically, or generally with the advowson, or without it,¹⁷ whether there
[026] are several advowsons or one, [Care must always be taken in the constitution or
[027] the assignment that she either retain one of the several or be satisfied to the value
[028] elsewhere.] [because], though advowsons sometimes¹⁸ are divided, [The modus of
[029] the constitution must always be observed, [but] though no mention is made of advowsons
[030] in the constitution or the assignment, ¹⁹and there is but one church in the
[031] inheritance, the heir ought not to confer it de jure during the widow's lifetime without
[032] her consent.²⁰ What if she is unwilling to consent? The heir, who has the two
[033] parts, will be preferred in the presentation.]²¹ they are not divided when a
[034] woman is endowed,²² [and] though [an advowson] of a church is of great value,
[035] it does not admit of division,²³ especially because it has not been divided ab antiquo.
[036] If she is not satisfied to the value in another way, it seems at first sight that if it
[037] falls vacant three times in her lifetime she ought, as a matter of equity,

Notes

1. Infra iii, 399

2-4. Merton, ca. 1; infra iii, 399

3. Statute reads ‘deforciatores’; Cal. Cl. Rolls, 1234-7, 337

5. Longrais, 402

6. ‘nisi’

7. Infra iii, 399

8. Merton, ca. 1

9. New paragraph

10-11. Glanvill, vi, 17: ‘certi iuris est quod heres tenebitur mulieri assignare in dotem tertiam partem totius liberi tenementi quod antecessor eius habuit in dominico die quo eam desponsavit’

12-14. ‘scilicet . . . ecclesiarum,’ from lines 23-5

13. Supra 221, but services only, infra 281

15. ‘de eis’

16. ‘secundum modum constitutionis,’ from line 23

17. Supra 222, infra iii, 221

18. Om: ‘non’; supra 222-3

19-20. Glanvill, vi, 17: ‘ita quod si non fuerit nisi una sola ecclesia in tota hereditate, si contigerit eam vacare in vita mulieris post mortem mariti sui, non poterit heres ipse sine assensu ipsius mulieris personam ad ecclesiam illam presentare.’

21. B.N.B., no. 380; infra iii, 221

22. ‘occasione dotis non dividuntur’

23. Reading: ‘et quamvis advocatio ecclesiae . . . extiterit, non patitur sectionem’