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not bar themselves during their infancy from claiming dower by accept-[498]-ing jointures, such marriages could not prudently be had in families of wealth and rank. Dower, though a just and honourable provision for the wife, is a right inconvenient to the heir, preventive of the free use and improvement of his lauds, and in great estates, a far more ample provision than can be in reason demanded or expected. The legislature therefore intended, that all women capable of contracting marriage should be bound by jointures made before marriage, which are presumed to be settled by the advice of parents, guardians, and friends; or if made only with their own consent by the husband fairly and without frand, still it was thought reasonable that she, whom the law allowed to bind herself by the marriage, which is the principal contract, should be bound by a provision which is accessory to that contract, and a condition of it. That according to this construction, the opinion of lawyers has been uniform, that a jointure made before marriage upon an infant, is a bar of dower; and on this presumption, settlements have been made upon infants in many families of this kingdom. In the various instances of jointures made before marriage upon infants, none can be found, either in authority or experience, where it has been adjudged, or insisted on and yielded in fact, that a widow might waive a jointure before marriage on account of infancy, and claim her dower. That the long unvaried practice of the Court of Chancery gives a full sanction to this construction of the statute, by directing on every application for the marriage of an infant female ward of the court, that a Master should see a proper settlement made on such infant, by way of jointure; whence it may be presumed, that the court always understood that such settlement and jointure would be effectual and binding in law on both the parties; intending at the same time to lend its aid and judgment to the infant ward, as her best guardian and protector.

But it is objected, I. That general words in statutes, especially in an enabling statute, as, for instance, the statute of wills, do not extend to infants; but by this construction of the statute in question, an infant wife will be enabled to bind her right of dower in the lands of her husband, without express words. And, II. That if infants are barred by this act, they will be liable to be defrauded by settlements of jointures inadequate to their fortunes.

As to the first objection it was submitted, that the rule of law is otherwise; and that infants are bound by general words, unless excepted, of which examples might be given. It is true, that the statute of wills, 32 Hen. VIII. enables persons generally, to dispose of their lands by another mode of conveyance than was allowed at common law; but by the explanatory statute, 34 Hen. VIII. feme coverts, persons under 21, etc. are expressly restrained by proviso, otherwise it might have been doubted, whether they were not enabled; besides, the legislature saw the absurdity of giving infants a power to dispose by will, which is an informal conveyance and often made in extremis, who could [499] not dispose by deed, which is attended with greater restraint, solemnity and notoriety at common law. But as to the matter in question, the statute was not an enabling, but a disabling law, grounded upon special reasons for the convenience of families; and consequently, for the earlier advancement of infant women, by disabling such infants from claiming dower, for whom jointures should be provided upon their marriage and as to the second objection, if such frauds are apparent, or fully proved, a court of equity will relieve, in which case they will be entitled to dower; a jointure set aside by proper authority, being as no jointure, and not within the statute.

It was further argued on behalf of the appellants, that as to the marriage agreement in the present case, the form and penning were inaccurate. If the substance of it had been extended in proper conveyances of a freehold in land, it would have bound the respondent by the statute as a jointure; and though it rested in covenant and contract, and was executory only, it was equally binding in equity, as a contract executed. It did not indeed in words stipulate a jointure of freehold in lands, but it did so by construction; because it stipulated an annuity, or yearly sum clear of taxes, during life, for and in the name of her jointure; which is defined by Lord Coke to be a competent livelihood of freehold in lands for the life of the wife, to take effect presently in possession or profit, after the decease of the husband. But supposing the right to a jointure in lands under this agreement to be doubtful, yet a court of equity sees it to be an ample provision stipulated before marriage, and expressly accepted by the respondent in bar of dower. It is therefore immaterial, whether it covenants for a proper jointure within the statute, or whether the provision was to arise out of copyholds, or personal