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Decisions of the Superior Courts of New South Wales, 1788-1899

Wild v. Driver [1838] NSWSupC 56

dower - married women's legal disabilities - felony attaint

Supreme Court of New South Wales

Willis J., 8 June 1838

Source: Sydney Herald, 11 June, 1838

Friday - In Equity - Before Mr. Justice Willis.

Wild v. Driver  - This was an argument on demurrer; the question for the decision of the Court was, whether a woman who shall marry while a Convict, and whose husband dies while she is under sentence, can claim dower after she becomes free.  After hearing the arguments of counsel, the Court was of opinion that as she was not in a position to claim dower when her husband died, the right could not ly in abeyance, and she could not subsequently claim it.

 

Source: Sydney Gazette, 19 June 1838

 

This was a bill filed for the recovery of dower.  In answer it was alleged that the plaintiff, at the time of her marriage, and at the death of her husband, and for some time afterwards, was a convict under sentence, and consequently was not entitled to dower. After hearing the arguments of Counsel His Honor dismissed the bill, holding that dower is a right that cannot lie in abeyance, and must arise at the death of the husband or not at all, and as the plaintiff was not in a condition to claim it when her husband died she could not claim it afterwards.

Published by the Division of Law, Macquarie University