Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
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]
-----
Footnote 425:
The “unknown charter” (see Appendix) specified sixty days, but Magna
Carta fixed the period at forty.
Footnote 426:
See Coke, _Second Institute_, p. 16.
-----
(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]
-----
Footnote 427:
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account