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(1855) 12 Gratt. 372; De Farges v. Ryland (1891) 87 Va. 404, 24 Am. St. Rep. 659, 12 S. E. 805; Ficklin v. Rixey (1893) 89 Va. 832, 37 Am. St. Rep. 891, 17 S. E. 325. Compare Land v. Shipp (1900) 98 Va. 284, 50 L.R.A. 560, 36 S. E. 391.

West Virginia.-See Fleming v. Pople (1916) 78 W. Va. 176, 88 S. E. 1058; Beverlin v. Casto (1907) 62 W. Va. 158, 57 S. E. 411.

Thus, in Stokes v. Stokes (1909) 240 Ill. 330, 88 N. E. 829, it was said: “A wife may, by a written contract with her husband, based upon a valuable consideration, release to him her rights in his property and estate, and thereby extinguish all her rights as widow, including the right of dower, and the fact that the parties are living separate and apart does not affect the validity of the contract."

In Rhoades v. Davis (1883) 51 Mich. 306, 16 N. W. 659, the court said: "The only point here is whether the husband, who holds the land subject to his right, may not continue and at the same time receive directly from his wife a release by deed, provided the transaction is supported by a satisfactory consideration and is in all respects fair and reasonable. If the question were in equity and subject to be adjudged by the long-settled principles on which rights and titles are there founded and enjoyed, and by which their use and disposal are regulated, the result would neither be novel nor uncertain. The release would operate as a bar in equity. But the inquiry arises on the other side of the court. It is a question of law. And, until the Act of 1855, it was the general doctrine of the courts of common law that the wife was not capable of enjoying and disposing of her own property at her own election, and moreover that the married pair could not contract directly with each other.

.. But that statute made a great change. It provided that coverture should in no wise disable the wife from selling what was her own, nor in any manner interfere with her disposal of it. No distinction is made between kinds of property. The language takes in all without exception.

Now, since the right in question is her property, and is a legitimate subject of sale, why may she not part with it in point of law to whosoever holds the title to which it is germane? And, since husband and wife may now by the rules of law, as well as those of equity, make mutual contracts with regard to property, and sell and deed to each other, . . . why may she not sell and release directly to her husband? No reason is perceived that would not infringe the spirit of the legislation of 1855. By means of that enactment the faculty to transact, and the fact transacted, which were antecedently pure matters of equity, were legitimated at law and clothed with the attributes of law. The consequential effect of the act of release upon the future of the right can present no objection. That the act in which she parts with the right, and so disposes of it, does at the same time determine it, is not an obstacle. These consequences are the due expressions of opposite sides of the same fact. The object aimed at is to cause a cessation of the right, and not an existence of it in new hands. The sale being made fairly, and in accordance with the dictates of equity, and regularly carried out by deed on one side and exemplary performance on the other, the transaction operates by way of release of the right, in contemplation of law, and implies an obligation not to reassert it."

In Dakin v. Dakin (1893) 97 Mich. 284, 56 N. W. 562, it was said: "We think that a contract whereby a wife releases her dower to her husband, in consideration of the conveyance to her of property from him, is valid. It has been so held repeatedly. Such release, whether to her husband, or by joining with him in a deed, or by election to take a bequest under his will, has been held a sufficient consideration for the conveyance of land and for such bequests, even against creditors, where the element of fraud is absent."

In Pearre v. Grossnickle (1921) 139 Md. 1, 114 Atl. 725, the court said: "There can be no question under the laws of this state as to the power of the wife, by contract with her hus

band, to relinquish her interest or right of dower in her husband's estate (Hill v. Boland (1915) 125 Md. 113, 93 Atl. 395, Ann. Cas. 1917A, 46), but the question here is, Did the wife, Mrs. Grossnickle, upon the evidence disclosed by the record, enter into an agreement or contract with her husband, such as the law contemplates, by which she relinquished her interest or dower in his estate?

The evidence in this case fails to prove a contract by which the gifts from Mr. Grossnickle to his wife were made and accepted as in lieu of her interest or dower in his estate."

In an action brought to stop payments to a divorced wife, provided for in a postnuptial settlement, which was made prior to the divorce proceedings, the court said in Crise v. Smith (1926)

Md., 47 A.L.R. 467, 133 Atl. 110: "Although the misconduct of a spouse may forfeit at law rights of dower or curtesy, yet, unless so stipulated, marital misconduct will not work a forfeiture of vested contractual rights which are preserved by the terms of a valid deed of trust. The wife united in the deed to the settlor for the purpose of having the postnuptial settlement made according to the terms of the deed of trust. By so doing, she released her potential right of dower in the freehold estate of her husband,. and she thereby became a purchaser for value with respect to her beneficial interest under the deed of trust. A court cannot assume that she would have consented to the settlement except upon the subsisting terms of the deed of trust, and she is entitled to have it enforced against her then husband according to its terms."

In the case of Fennell's Estate, 207 Pa. 309, 56 Atl. 875, the court said: "By an agreement in writing, under seal, duly acknowledged, a married woman relinquished her right of dower and all other right, claim, and interest whatsoever in the estate of her husband, and agreed that at his death his estate should vest in his heirs or in such persons as by will he should appoint, in like manner as if they had never been married. At the same time her husband executed an agree

ment relinquishing all interest in her estate. These agreements were alike and conferred equal rights. Their purpose, as stated in the preambles, was to give to each the free and absolute control and disposal of his or her separate property. The consideration in each was $1 and the like covenant of the other party. The agreement into which the wife entered was entirely free from fraud, concealment, or overreaching. She was her husband's second wife, married late in life, and not the mother of his children, who were of full age at the time of her marriage. Each party had a separate estate, and hers was a third larger than his. The agreement was not only fair and conscionable, but decidedly to her advantage. After the death of her husband, she attempted to repudiate the agreement into which she had entered, on the ground that it was not legally binding, and she instituted proceedings in partition to have her dower interest ascertained and set apart. We have then the single question whether a postnuptial agreement reasonable in its terms, entered into with a full knowledge of the facts and for an adequate consideration, by which a wife releases her inchoate right of dower, is binding upon her, there being at the time no intention to suspend the marital relation. If this agreement had been made in the contemplation of an actual and immediate separation even before the Act of 1893, there could be no doubt of its validity. . . While the common-law disability of a married woman remained, except as modified by statute, her contracts when unobjectionable might be enforced through the medium of equity. Equity for some purposes regarded husband and wife as distinct persons, capable of contracting with each other, notwithstanding their legal unity.

. . If there was doubt before on this subject, it was settled by the Act of June 8, 1893, which gives to a married woman the same right and power that any other person has to acquire, possess, control, and dispose of any kind of property in possession or expectancy, and to make any contracts

that may be necessary, appropriate, or advantageous to the exercise and enjoyment of the rights and powers granted, excepting only certain contracts named."

In Irvin v. Irvin (1895) 169 Pa. 529, 29 L.R.A. 292, 32 Atl. 445, it appeared that a wife contracted to release rights of dower in certain parcels of land, in consideration of money to be paid to her by her husband. After she had released her dower rights in the land, she sought to recover on the contract. It was held that the contract was enforceable.

In Beverlin v. Casto (1907) 62 W. Va. 158, 57 S. E. 411, the court said: "The intention to bestow some benefit upon the wife has been expressed in the deed. At the time it was executed, she had no estate in the land, nothing out of which a reservation could be made. All the interest she had was an inchoate right of dower, which constituted no estate in the land. George v. Hess (1900) 48 W. Va. 534, 37 S. E. 564; Thorn v. Sprouse (1894) 39 W. Va. 706, 20 S. E. 676. This right she released. To hold otherwise is to deny any effect whatever to her deed. It constituted a good consideration for a postnuptial settlement by her husband, and, to the extent of its value, he could provide for her out of his estate, even though in doing so he intended the exclusion of his creditors."

In McGaugh v. Mathis (1917) 131 Ark. 221, 198 S. W. 1147, the court said: "In any view of the case, there is no merit in Lucinda's contention that she should be endowed of the estate of R. J. Mathis, deceased, because she agreed to a separation and accepted a deed to certain lands in lieu of dower. Kirby's Dig. § 2697." A different rule at one time obtained in Arkansas. In Bowers v. Hutchinson (1899) 67 Ark. 15, 53 S. W. 399, there was pleaded in bar of a petition to assign dower a deed of separation which included a release of the wife's dower rights in the property of her husband. The deed had been duly executed and acknowledged by the petitioner and the deceased in his lifetime. The court said: "The deed which constituted the defense

in this action was without effect as a relinquishment of dower in real estate. The statutes of this state provide that a widow shall have dower in 'all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.' To relinquish her dower in any land of her husband, the statutes require her to join in the conveyance thereof, and to voluntarily appear before a proper court or officer, and in the absence of her husband, declare that she had of her own free will signed the relinquishment of dower for the purposes contained and set forth in the conveyance, without compulsion or undue influence of her husband. Under these statutes this court has repeatedly held that ‘a married woman can relinquish dower only by joining with her husband in a deed of conveyance to a third person.' In Pillow v. Wade (1877) 31 Ark. 678, this court held that a release of dower by a wife to her husband was a nullity." However, it was held in that case that equity would enforce a contract, otherwise valid, made between a husband and wife, whereby the latter agreed to relinquish her dower rights, when the contract had been performed by the husband, and the wife had received the full benefits under it.

In Eschner v. Eschner (1926)

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Va. ——, 131 S. E. 800, an action to enforce the payment of an annuity to a wife in accordance with a contract between her and her husband, it was held that the release by a wife of her inchoate right of dower in her husband's real estate constituted a valuable consideration for a postnuptial settlement in her favor.

In William & M. College v. Powell. (1855) 12 Gratt. (Va.) 372, the court said: "That a postnuptial settlement in favor of a wife, made in pursuance of a fair contract for valuable consideration, will be held good, is a doctrine supported by abundant authority; and although it may have been made under such circumstances that it must be pronounced fraudulent and void as to the creditors of the husband, yet, if the wife have relinquished her

interest in property on faith of such settlement, it will be held good to the extent of a just compensation for the interest which she may have parted with; and this though the settlement may have been made subsequent to the relinquishment." See to the same effect, Ficklin v. Rixey (1893) 89 Va. 832, 37 Am. St. Rep. 891, 17 S. E. 325.

In De Farges v. Ryland (1891) 87 Va. 404, 24 Am. St. Rep. 659, 12 S. E. 805, the court said: "It is settled that the relinquishment by the wife of a certain, or even a contingent, interest in her husband's estate, will support a postnuptial settlement when there is no badge of fraud."

There is a decision in Virginia in conflict with the majority view, but it seems to have been overruled by implication in the more recent case of Eschner v. Eschner (1926) — Va. -, 131 S. E. 800, the holding of which is stated supra in this subdivision. In the case conflicting with the majority view, Land v. Shipp (1900) 98 Va. 284, 50 L.R.A. 560, 36 S. E. 391, the question before the court was the validity of a release of dower by a wife to her husband, contained in a deed of separation. The court said: "The 'married woman's act' makes no reference, directly or indirectly, to the rights of the wife in the husband's property, real or personal, acquired by the marriage. It simply enlarges the powers. of the wife over property declared in the act to be her separate estate. There is nothing whatever in the act conferring upon the wife the power to contract generally, whether she had separate estate or not. . . . The deed of separation in this case contains none of the elements of a jointure. It is nothing more or less than an attempt to dissolve the marital relations between the parties, to obtain from the wife a release, directly to her husband, of her inchoate right of dower in his estate, and to place upon her the support of herself and the child of the marriage. In the condition in which the wife was thereby placed, the money consideration for entering into the contract was readily consumed in the use for the support of herself and child. The wife being without power

to make such a contract, it is absolutely void as to her, and therefore does not bar her dower in the lands of which the husband was seised during the coverture."

In Indiana and Kentucky it has been held that an agreement entered into by a husband and wife whereby the latter, for a consideration, releases her dower interest to her husband, will not be binding on the wife unless it is evidenced by a deed or instrument in writing. Randles v. Randles (1878) 63 Ind. 93; Shemwell v. Carper (1905) 27 Ky. L. Rep. 997, 87 S. W. 771. However, it seems that such an agreement is valid and binding as against the husband. Brown v. Rawlings (1880) 72 Ind. 505.

In South Carolina it is held that, if the intention to covenant to release dower is not clearly manifest from the terms of the instrument, it cannot be asserted as an effectual bar to that interest after the decease of the husband. Shelton v. Shelton (1884) 20 S. C. 560; Moon v. Bruce (1902) 63 S. C. 126, 40 S. E. 1030. Separation agreement.

The fact that an agreement to release dower is incorporated in a deed of separation executed by the husband and wife does not alter the rule validating such a release, if the agreement of separation is otherwise valid and binding as between the parties. Hilbish v. Hattle (1896) 145 Ind. 68, 33 L.R.A. 783, 44 N. E. 23; Friebe V. Elder (1913) Ind. App. —, 103 N. E. 429, affirmed in (1914) 181 Ind. 597, 105 N. E. 151; Loud v. Loud (1868) 4 Bush (Ky.) 453; Randall v. Randall (1877) 37 Mich. 563; Rhodes v. Davis (1883) 51 Mich. 306, 16 N. W. 659; Owen v. Yale (1889) 75 Mich. 256, 42 N. W. 817; Chittock v. Chittock (1894) 101 Mich. 367, 59 N. W. 655. See also Bechtel v. Barton (1907) 147 Mich. 318, 110 N. W. 935; La Plant v. Lester (1907) 150 Mich. 336, 113 N. W. 1115; Hutton v. Hutton (1846) 3 Pa. St. 100; Dillinger's Appeal (1860) 35 Pa. 357; Hitner's Appeal (1867) 54 Pa. 110; Scott's Estate (1892) 147 Pa. 102, 23 Atl. 214; Kaiser's Estate (1901) 199 Pa. 269, 85 Am. St. Rep. 785, 49 Atl. 79.

Compare Walsh v. Kelly (1859) 34 Pa. 84 (agreement not under seal); Kreiser's Appeal (1871) 69 Pa. 194 (common-law rule).

Thus, in Loud v. Loud (1868) 4 Bush (Ky.) 453, the court said: "Whilst courts should guard with vigilance the rights of wives, it is not meant to disregard those of the husband; and when a wife, without legal cause, shall abandon her husband, and when causes of litigation between them exist, we apprehend that an article of separation entered into with a trustee consenting for the wife, in which the husband provides for her as well, or perhaps better, than the court would compel him, in consideration of which she relinquishes right of dower and distribution in his estate, and the parties continue to act upon this until the husband dies, it is too late for her to complain or seek to repudiate the provision made for her, and demand dower and distribution." And in Kaiser's Estate (1901) 199 Pa. 269, 85 Am. St. Rep. 785, 49 Atl. 79, the court, in passing on the validity of a stipulation executed by a husband and his wife, whereby the latter agreed to release her dower interests in the lands of the former, said: "It is well settled by numerous decisions in this state that a contract of this character is binding on both parties. To give it validity, however, as against the wife, it must contemplate an actual and immediate separation, must be based upon a good consideration and be reasonable, in its terms, and must in good faith be carried into effect by the parties. Such deeds of separation are effective both at law and in equity and will be enforced according to their terms. This is unquestionably the law of the state as established by the decisions of this court. The reason of the rule is apparent from these decisions. . Such deeds are obligatory upon the husband, and their provisions are enforceable against him and his estate. As has been said, mutuality is the essence of equity. The reason, therefore, for the enforcement of the contract against the wife is that it would be manifest injustice and violative of

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every principle of equity, to permit her to disregard and annul the agreement freely made by her for a good consideration and upon terms advantageous to her. She cannot retain the benefits of the transaction and repudiate her covenants given as a consideration for them. Equity turns her away from its door and refuses its assistance in obtaining for her the fruits of a violated agreement. This is the effect of her deed, regardless of the acknowledgment. It is not the form or character of the acknowledgment of the contract, but the solemn covenants which she assumes in sealing the instrument and accepting its benefits, that give it life and prevent her from repudiating it."

In Hill v. Boland (1915) 125 Md. 113, 93 Atl. 395, Ann. Cas. 1917A, 46, it was held that, although a contract of separation may be contrary to the policy of the law of the jurisdiction, that fact will not render void a part of the agreement whereby the wife, for a valuable consideration, releases her dower interest to her husband, as they are competent to enter into such a contract and continue to live together as husband and wife.

In some instances, however, where a release of dower by a married woman has been incorporated in an agreement entered into for the purpose of facilitating a divorce, the entire agreement has been held to be void as contrary to public policy. Hamilton v. Hamilton (1878) 89 II. 349; Re Bell (1905) 29 Utah, 1, 80 Pac. 615.

b. Minority view.

1. In general.

In several jurisdictions a postnuptial release of a wife's interest in her husband's estate, embodied in a contract between a husband and wife without the intervention of a trustee, is held to be invalid.

Alabama.-Martin v. Martin (1853) 22 Ala. 86.

Stilson v. Stilson

Connecticut.
(1878) 46 Conn. 15.
Delaware.

McCaulley v. McCaulley
(1884) 7 Houst. 102, 30 Atl. 735.
Iowa.-Linton v. Crosby (1880) 54
Iowa, 478, 6 N. W. 726; Shane v. Mc-

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