| 1372.076 |
1372 |
|
Dower |
Dower |
| Mich. |
46 |
Edw. 3 |
8 |
24b-25a |
Percy, Henry Sjt Persa (for D)
Belknap, Robert Sjt (for P)
Percy, Henry Sjt Persay
Belknap, Robert Sjt
Tauke, William Sjt Tank
Fyncheden, William de CJCP FInchden
Meres, Roger de (alias Kirkton) JCP Kirton
Percy, Henry Sjt Persay
Tauke, William Sjt Tank
Fyncheden, William de CJCP Finchden
Belknap, Robert Sjt
the Court (mentioned)
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husband |
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| wife |
Veiman, Benet, first husband of plaintiff wife, defendant's father
Pristr', Robert, Benet's feoffee, donor to Benet and his first wife
Johan (Joan), Benet's first wife
Edward, donor
Benet, John, donee in tail, Benet's father
Benet, Alice, John's wife, donee in tail, Benet's mother |
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not Fitzherbert Dower 39
Brooke Dower 18 |
1370.092 = Mich. 44 Edw. 3, pl. 1, fols. 25b-27a (Falston v. Falston, dower, issue of whether defendant was in under first entail or second entail, referenced in the report as the case of Fastolf) |
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| Dower fuit port per un home & sa feme, vers un home & sa feme. @ Persay, Dower ne deves aver, car |
39 |
| Dower was brought by a man and his wife, against a man and his wife. The defendants said that the woman plaintiff should not have dower, because they said that Benet Veiman, her first husband, of whose endowment she demanded, was seised etc., and of the same land enfeoffed one Robet Pristr', which Robert gave the same land to Benet and to Joan, his first wife, and to the heirs of their two bodies, and for default of issue the remainder to the right heirs of Benet, and the defendant was issue in tail between them, and they demanded judgment if the woman plaintiff, who was the second wife of Benet, could have dower. The plaintiffs said that one Edward, a long time before Benet had anything etc., and they acknowledged that there was such a gift, was seised, and gave the same land to one John Benet and his wife Alice and to the heirs of their two bodies, from whom issued Benet, who was seised as issue in tail, and from Benet issued the defendant, who was in by force of the first entail, and the plaintiffs demanded judgment and prayed their dower. The defendants said that the woman plaintiff did not deny that her husband was seised jointly with his first wife in fee tail, although she affirmed upon them that the defendant was tenant in tail; this was to the defendant's title to claim by the one or by the other, and the defendant claimed by force of the second tail, and since the woman plaintiff did not maintain the estate of her husband such that he could endow her, the defendants demanded judgment. The plaintiffs said that if land were given to a man and to his wife in fee tail, and for default of issue the remainder to the right heirs of the husband, the wife died after issue, the husband took a second wife, the issue died, the husband died, the second wife would be endowed against the collateral heir, so it seemed to the plaintiffs here, since after the death of the first wife, the better right would be adjudged in the person of the husband, and this was the first entail. A serjeant said that the plaintiffs' case when the husband had fee simple and fee tail, it was right (reason) that she be endowed, but here when the husband took back estate to himself and to his first wife, he had nothing except in fee tail jointly with his wife, so that in case they had been impleaded, and the husband vouched by force of the first entail, he would be ousted from the warranty, because his estate would be adjudged to be by the second entail, and it would be impossible that he had two estates. Fyncheden CJCP said that it was necessary for the woman plaintiff to maintain the estate of her husband etc., that he had such possession of which she would be endowable, because although he had right to the land, that was worth nothing to the purpose, but possession (voudr'), as if land were given to a man in fee tail, rendering a certain rent to the donor, and the donee took a wife, although the reversion had fallen in (soit eschue) for default of issue, nevertheless the wife would be endowed on account of the possession that he had at one time, and she would be attendant to the donor for the third part of the services. And in the case of Fastolf it was adjudged that the wife took nothing by her writ of Dower, (Latin begins) as in the Michaelmas term of the 44th year (Latin ends), because if she had recovered against the issue in tail, of the first wife, he would have recovered back by the Formedon, so he was received there to maintain his possession to oust the woman from dower by way of answer, and thus the tenant (defendant) could do in this case, as it seemed to him. Meres JCP said that in case a stranger had wrongfully intruded (abatu) after the death of Benet, the issue would have recovered etc., and it would not have lain in his mouth that the wife would not be endowed by force of the first entail. The defendant said that in Meres JCP's case it would be at his election by which gift he wanted to have demanded. A serjeant said that the issue could elect by which gift he wanted to claim to his advantage, as if one disseised his heir within age of his purchase, and died, after his death he could claim which estate he wanted, and he would have his age. Fyncheden CJCP said that he did not grant that he would have his age. And after the plaintiff saw (ust) the opinion of the Court that judgment would be given against him, he prayed leave to imparl, and he had it. |
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