If, however, the Heir be unwilling to contest the point, he shall
be bound to give to the Woman a competent equivalent; because, the
Woman herself shall not afterwards sustain any loss. But, if the Heir
himself neither admit nor concede to the Woman that which she alleges
against the Tenant, then, the suit may proceed between the Woman and
the Heir. For a Woman cannot with Effect bring an Action against any
one, without the Warrantor of her Dower.[180] If, therefore, the Heir
should absolutely deny the Right of the Woman, alleging in Court, that
she never was endowed by his Ancestor, the matter may be decided by the
Duel, provided the Woman produce in Court those who heard and saw the
Endowment, or any proper Witness who may have heard and seen the fact
of her being endowed by the Ancestor of the Heir at the Church door,
at the time of the Espousals, and be ready to prove such fact against
him.
[Footnote 180: For, as the Regiam Majestatem adds, “the king’s writ
is of no force, unless the warrantor be summoned.” (L. 2. c. 16.) The
Bodleian, Harleian, and Cottonian MSS. add, _that the woman is not
bound to answer, without her warrantor_.]
Should the Woman prevail against the Heir in the Duel, then the Heir
shall be bound to deliver the Land in question to the Woman,[181] or to
give her an adequate recompense.
[Footnote 181: The Dower being assigned, says Bracton, it shall, in
every sense of the word, be enjoyed freely; and the wife shall not be
compelled to contribute any portion of it, towards discharging the
Debts of her Husband, which entirely devolve upon the Heir. The Heir
shall warrant and defend the Dower, and perform the judicial services
that may be due in respect of it, to the County, the Hundred, or the
Lord’s Court; whilst the widow, exempt from every other care, devotes
her attention solely to the management of her domestic affairs, and to
the education of her children.—She shall, however, have her own court.
(fo. 98. a.) So effectually were the convenience, the interest, the
dignity, of the widow attended to when Bracton wrote!!]
CHAP. XII.
It should be observed, that when any one endow his Wife in these
words, “I give to thee this Land, or Vill, by name, with all its
appurtenances”—if, at that period, he held not any thing appurtenant
to it in his Demesne, nor of which he was seised at the time of his
Espousals, and he in his lifetime recover it, or by any other lawful
means acquire it, the Wife, after the death of her Husband, may, by the
Law of Dower, justly demand such appurtenant, together with the other
property of which she was endowed.
CHAP. XIII.
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