'whether so expressed or not.' It seems clear that the executors of the deceased husband could compel the plaintiff to unite with them, under the provisions of the agreement, in conveyances of all of the real property of which he died seised, without compensation other than the payment of the annuity provided; and while the agreement does not, in terms, release the wife's inchoate right of dower, such is the effect of the provisions referred to. Having received and retained the pecuniary provision provided in such instrument for a period of six years, and not having returned or offered to return the same, she must be held to have elected to accept it in lieu of dower; she cannot have both the pecuniary provision and dower, and I regard her claim to dower barred in equity."

And in Barnes v. Klug (1908) 129 App. Div. 192, 113 N. Y. Supp. 325, it was held that the fact that the agreement releasing dower is made a part of a separation agreement, which is otherwise valid, does not alter the rule. See also Hogg v. Lindridge (N. Y.) supra.

Likewise, it has been provided by a statute that a woman who is divorced from her husband, whether the divorce is absolute or limited, or is granted in his or her favor, may release to him by an instrument in writing sufficient to pass title to real estate, her inchoate right of dower in any specific real property theretofore owned by him, or generally in all such real property and such as he shall thereafter acquire. Savage v. Crill (1879) 19 Hun (N. Y.) 4, affirmed in (1880) 80 N. Y. 630 (absolute divorce); Schlesinger v. Klinger (1906) 112 App. Div. 853, 98 N. Y. Supp. 545 (limited divorce).

In Tennessee it is held that a deed of release of dower and separation executed by husband and wife is voidable at the election of the wife, but if she elects to take dower in the husband's estate she must account for the property conveyed in the deed which has not been expended for her support and maintenance during coverture. Chaney v. Bryan (1885) 15 Lea

(Tenn.) 589. See also Parham v. Parham (1845) 6 Humph. (Tenn.) 287; Watkins v. Watkins (1834) 7 Yerg. (Tenn.) 283.

In Georgia the rule obtains that a married woman may bar her right to dower by contracting with her husband to relinquish her claim and holding to the consideration given, after his death. Lively v. Paschal (1866) 35 Ga. 218, 89 Am. Dec. 282; Butts v. Trice (1882) 69 Ga. 74. But it has been held that a contract executed by husband and wife and intended to promote a dissolution of marriage is contrary to the policy of the law, illegal and void, and a provision contained therein relinquishing the wife's right of dower to the husband cannot be asserted as a bar to a widow's dower. Thus, in Birch v. Anthony (1899) 109 Ga. 349, 77 Am. St. Rep. 379, 34 S. E. 561, it appeared that the following agreement was asserted as a bar to a widow's petition for allotment of dower in her husband's estate, viz.: "Having positively determined to leave my husband, E. R. Anthony, and deny him all marital rights whatever, I hereby, in consideration of four hundred dollars ($400) this day paid me by him, relinquish all claims of any kinds whatever I have on him as wife. . . . Providing this is a divorce granted said Anthony by 1st of April, 1895." The court said: "Whatever else may have been contemplated by the parties to this contract, it manifestly appears that it was their intention to promote a dissolution of the marriage relation existing between them. By reference to the contract it will be seen that it was apparently complete and ready to be signed when the condition was added, providing, in effect, that it should be legal if a divorce should be granted to the husband on or before a fixed date. This provision renders the whole contract illegal, as it is well settled that a contract intended to promote a dissolution of marriage is contrary to the policy of the law, illegal and void."

However, in Iowa, where a contract between husband and wife releasing the wife's dower interest in the property of her husband is rendered in

valid by statute, the fact that the wife has retained the benefits accruing under the contract cannot be successfully urged to avoid the effect of the statute. Shane v. McNeill (1888) 76 Iowa, 459, 41 N. W. 166; Sawyer v. Biggart (1901) 114 Iowa, 489, 87 N. W. 426; Re Kennedy (1912) 154 Iowa, 460, 135 N. W. 53. Thus, in the case last cited the court said: "Section 3154 of the Code declares that 'when property is owned by husband or wife, the other has no interest therein which can be the subject of contract between them,' and in many decisions we have held that this withdraws such interest entirely from the field of barter or agreement of whatsoever nature between them. . . . The statute is one of descent and distribution, and a contract between husband and wife, with reference to her interest in his estate, is of no validity whatever.

The language of the statute does not limit the prohibition to contracts without consideration, but prohibits them absolutely. How, then, if the husband and wife might not have dealt with each other concerning the interest of the one in the property of the other, can it be said that, having done so, the one is estopped by something received from denying having so contracted? The position is preposterous."

Appellee contends that, after the deeds to defendant had been executed on June 2d, plaintiff was trying to so arrange matters that, if plaintiff's husband should be the first to die, as it was thought he would because of his poor health, that plaintiff might claim dower in his 80, while if she died first he would be cut off from any interest in her 80. Nothing occurred after June 2d to indicate any change of purpose on the part of either plaintiff or her husband, or that plaintiff had any intention of departing from the original plan of a separation and division of property as carried out on June 2d. We think that when plaintiff and her husband, by the two separate deeds executed June 2d, conveyed all their land to defendant, they were each immediately precluded from claiming any interest in the property which it was agreed should belong to the other. The agreement and its execution, at least so far as the land was concerned, was completed when the deeds passed. The contract was fair and equitable to plaintiff. At the time there could have been no claim that the deeds were invalid. We think the statement by defendant, after the execution of the deeds, to the effect that it held the husband's property in trust for him, did not have the effect of revesting plaintiff with an interest in her husband's land, of which interest she had previously devested herself by the deed."

But deeds to a third person by a husband and wife, made in pursuance of a contract of this character, and waiving any interest of the wife in the property, have been held to preclude her from claiming any interest on the death of her husband in the land conveyed. Martin v. Farmers Loan & T. Co. (1917) 180 Iowa, 859, 7 A.L.R. 238, 163 N. W. 361. In that case the court said: "The court was justified in finding from the evidence that plaintiff and her husband mutually agreed to a full and complete division of their property, with thereafter living apart, and that they both in good faith undertook to carry out such an agreement, and that it was carried out. The parties were (Mass.) supra, it appeared that a hus

view to

competent to contract, and there was no fraud perpetrated or attempted when the agreement was executed.

In Massachusetts and New York it has been held that a fair and equitable postnuptial agreement made with the intervention of a trustee, and releasing all claims of dower in the husband's estate, is valid. Aitchison v. Chamberlain (1922) 243 Mass. 16, 136 N. E. 818; Walker v. Walker (Walker v. Beal) (1870) 9 Wall. (U. S.) 743, 19 L. ed. 814 (case apparently governed by law of Massachusetts); Greenleaf v. Blakeman (1899) 40 App. Div. 371, 58 N. Y. Supp. 76, affirmed in (1901) 166 N. Y. 627, 60 N. E. 1111. In Aitchison V. Chamberlain

band and wife were married when she was forty-eight years old and he was eighty. Within a few months she left

his home, and a few years later a postnuptial agreement was made through a trustee, in which she released all claims of dower in his estate, homestead rights, and rights as his statutory heir. In holding that the agreement was valid, the court said: "A postnuptial agreement when the husband and wife are separated, when made through a trustee, is valid (Terkelson v. Peterson (1914) 216 Mass. 531, 104 N. E. 351); and will be enforced if free from fraud, and fair and reasonable under all the circumstances of the case (ibid.; Bailey v. Dillon (1905) 186 Mass. 244, 66 L.R.A. 427, 71 N. E. 538). The master has found that the postnuptial settlement was fair, just, and reasonable. Without reciting all the facts found by him, the report shows that the plaintiff herself suggested the compromise; that she was fully advised by her counsel, who emphasized to her the main features of the agreement and told her that if she survived her husband the contract was not an advantageous one; and, on the contrary, if he survived her, it was an advantageous one. She took the contract home to reflect upon the advisability of entering into it, and, after considering it and taking into account her husband's health and her own circumstances, she decided that $7,000 at that time 'would do her more good than to wait until Mr. Aitchison died.' The contract was free from fraud or coercion, and the plaintiff entered into it intelligently. She knew what her rights were and she had the assistance of learned counsel. In view of all the circumstances, it cannot be said that the agreement was unreasonable or unfair."

With respect to a Massachusetts postnuptial agreement made through the intervention of a trustee, the court said in Walker v. Walker (Walker v. Beal) (1870) 9 Wall. (U. S.) 743, 19 L. ed. 814: "For many reasons, which are apparent without stating them, it was desirable, if possible, to avoid a judicial investigation, and according-ly negotiations to this end were commenced on the part of the husband, which resulted in securing to the wife

a suitable provision for her support. This settlement was made by him, and accepted by her, not only in lieu of alimony, which she could have obtained, but also in place of dower; and the covenant of the trustees against any future claim of alimony, and their agreement that the wife's debts should be paid out of the property conveyed to them, furnished the security to the husband for the permanent arrangement contemplated by the parties. If we consider that the value of the property transferred to the trustees for the benefit of the wife was but little more than the husband received in her right from her father's estate, and that, at the time, he was worth between three and four hundred thousand dollars, it would seem the provision for the wife's maintenance was less than she had a right to demand and ought to have received. If the law authorizes a wife to leave her husband on account of cruel treatment, and to get from him a competent support, it cannot withold its sanction to the articles of separation concluded between these parties under the circumstances disclosed by the evidence in this case."

In Greenleaf v. Blakeman (1899) 40 App. Div. 371, 58 N. Y. Supp. 76, affirmed without opinion in (1901) 166 N. Y. 627, 60 N. E. 1111, a trustee for a wife brought suit for the specific performance of a covenant by her husband to give security for carrying out the provisions of a postnuptial contract. The contract was a separation agreement, which provided that the husband should pay to the wife through the trustee $3,500 per annum, and that the wife should release all claims in her husband's property, all right of dower in her husband's real estate, and all rights in the real and personal property of her husband under any statute of distribution. In holding that the covenant to give security was specifically enforceable, the court said: "There are strong equities in favor of the wife. The husband has specifically agreed to give such security. Such an agreement was made after prolonged negotiations as to the form of the covenant providing for

such security. The attorney for the wife was assured that the husband would give such security and intended in good faith to carry out the provisions of this covenant; and, unless some inflexible rule of law prevents a court of equity from enforcing it, this appellant should be compelled to do what he agreed to do, and especially where he has, since the agreement, required the other party to the agreement to relinquish her right of dower in his property and to comply with the other provisions of the agreement, which demand she has complied with. Common honesty requires that this appellant should comply with the agreement thus formally made on his part, the benefits of which he has received. The law recognizes the obligation upon the husband and father to provide for the support of his wife and children; and when a husband and wife have separated and are living apart, the covenant on behalf of the wife to accept from the husband a certain sum of money in lieu of this obligation of support and maintenance for herself and her children, together with a relinquishment by the wife of her dower in her husband's estate, and all interest in any property which he then owns or should subsequently acquire, with a relinquishment of the right to administer upon his estate in case of intestacy, is ample consideration for the promise of the husband to pay the wife the sum of money that has been agreed upon for the support and maintenance of herself and her children. There is nothing to show that the amount agreed upon was in any way excessive, or that the agreement itself was not a perfectly fair one. The law recognizes the binding force of such an agreement, and will enforce it."

In Canada it has been held that a separation deed executed by a married woman and her husband and trustees on her behalf was valid, and that the wife could not claim dower in her husband's estate, where the deed contained a covenant releasing her right to dower and it appeared that she had retained the consideration and the benefits accruing under

the deed. Eves v. Booth (1900) 27 Ont. App. Rep. 420, affirming (1899) 30 Ont. Rep. 689.

Likewise it has been held that a contract whereby the husband agreed to turn over certain property and moneys to his wife in consideration of her releasing her dower in certain lands which the husband wished to convey to a third person was a valid agreement, and not contrary to public policy. Lavin v. Lavin (1882) 2 Ont. Rep. 187.

c. View in Missouri.

In Missouri the validity of a contract by a wife for an adequate consideration, to waive or settle rights of the surviving spouse in the other's estate, seems to be unsettled, as the later cases have been decided on the inadequacy of the consideration or the inequitable character of the contract. Egger v. Egger (1910) 225 Mo. 116, 135 Am. St. Rep. 566, 123 S. W. 928; Re Wood (1921) 288 Mo. 588, 232 S. W. 671.

In Egger v. Egger, supra, the court said: "The Married Woman's Act of 1889, now § 4335, Revised Statutes 1899, says that a married woman, for the purposes therein mentioned, is to be deemed a feme sole so far as to enable her to make contracts, and we have held in the cases above cited that she was thereby empowered to make contracts with her husband the same as a feme sole could do. The lawmaker certainly meant to say that a married woman could make any contract that a feme sole could make, but it is not so clear that the legislature meant to say that she could make a contract with reference to a subject that a feme sole could have no control of, that is, a wife's prospective distributive share of her husband's estate. A feme sole in contemplation of marriage might make an antenuptial contract on that subject, but she would then be in fact a feme sole, not a married woman acting quasi feme sole under authority of our Married Woman's Statute. A good deal might be said on both sides of that question, and it is yet an open one. But assuming, without deciding, that un

der § 4335 a married woman could make a contract disposing of what the law gives her in § 2937, such contract would have to be supported by a valuable consideration. What was the consideration that passed to the wife for this contract? It starts out with the recital that she has a great desire to be freed from embarrassment or cares of business when her husband dies, therefore she has 'requested, induced and agreed' with her husband that he shall make this provision for her in his will, which provision is that the executor and trustee shall set apart mortgage notes to the amount of $20,000, out of the interest arising from which he is to pay her $75 a month during her life, the principal to be distributed to the residuary legatees at her death; then the contract goes on to say in effect that, as she is so anxious for it, he agrees to do that, and in consideration of his promise to do so she releases all claims of every kind to his estate, specifying dower, homestead, and 'all claims, rights, interests, or demands' existing then or to arise thereafter at his death. At that time the husband owned real estate to the value of $100,000 and personal property approximating $200,000; at least, that is what the estate was estimated to be worth at his death, which occurred three or four years afterwards, and there is nothing in the record to suggest that there had been any particular increase between the date of the contract and the death of the husband. Of course there was a possibility of unforeseen disaster coming before his death to sweep away so much of the personal estate that her share would be less than the value of $75 a month, but one would be straining far to find that

moving cause for the contract. Besides, there was her dower right in $100,000 worth of real estate, of which she could not be deprived either by her husband's act or his misfortune. And even the recitals in the contract itself exclude the idea that it was made to guard against possible disaster; according to the recitals it was not to save her from a reasonably expected loss, but from the embarrass

If

ment and care that the possession of so much wealth would entail. There is some difference between counsel as to whether at that time she knew the extent of her husband's fortune. she did not know, it was the duty of her husband to have informed her; if she did know, as counsel for appellants think, it is all the worse for the contract. If she knew at the death of her husband she would be entitled to dower in real estate of the value of $100,000 and one sixth of personal property to the value of nearly $200,000, and that her husband could not by his will deprive her of it, and yet agreed that, if he would make a will giving her $75 a month during her life, she would take that in lieu of the large share of the estate which the law gave her, it was a mere nudum pactum. There was nothing given her at the time; there was only a promise to give her out of his estate by will at his death something very much less than what would have been her own by right under the law. If, instead of a mere promise to make a will, the contract had provided for the then transference to a trustee of mortgage notes to the amount of $20,000, to secure her the monthly sum of $75 for life to guard against possible vicissitudes of fortune, a different case would be presented, as to which we say nothing. Here we have a mere promise to make a will giving her less than she would be entitled to if there was no will. Counsel for appellants suggest that we turn the case around, and suppose there was no will, and that at the death of the husband the promised provision for her in the contract exceeded the value of her dower and her statutory share in the estate, could the executor and heirs avoid the contract on the ground that it was not supported by a consideration? The contract is not binding on one unless it is binding on both. If there was no consideration to support the agreement to relinquish her dower and her other claims against the estate, that relinquishment is not binding on her, and constituted no consideration to support the promise to make a will. A mere promise by a debtor