as valid or not, as it may be shown to be fair or fraudulent, and the comparative value of the respective estates and interests may be taken into consideration."

In Garlick v. Strong (1832) 3 Paige (N. Y.) 440, it was held that a wife's relinquishment of a right of dower in land was a sufficient consideration to support an agreement by the husband that she should receive as her separate property a part of the purchase price of the land.

However, in Iowa, under a statute providing in effect that a husband or wife has no interest in the property of the other resulting from the marriage relation, which can be made the subject of contract between them, an agreement by a wife with her husband that for a certain consideration she will join him in a conveyance of his land to a third party is invalid and unenforceable. Miller v. Miller (1897) 104 Iowa, 186, 73 N. W. 484; Garner v. Fry (1898) 104 Iowa, 515, 73 N. W. 1079. In the case last cited the court said: "While the statutes of this state confer on married women the largest freedom in contracting, they stop short of that interest in the husband's property with which the wife is endowed for the protection and well-being of the family. She cannot convey it, as a separate and independent interest, to a third party. . . Nor can she convey it to her husband. The inchoate dower interest may be released, but not bargained and sold. . . . The statute is not limited to conveyances, but is extended to all contracts. 'When property is owned by either the husband or wife the other has no interest therein which can be subject of contract between them. . . .' Code, § 3154. This evidently refers to the interest arising from the marriage relation, such as dower or homestead, and not that derived from some other source. . . . It is the policy of the law to foster and protect family unity and harmony, and for this purpose the contingent interest of the husband or wife in the other's property is created, though not such as may, in any event, become the subject of

barter and sale between them. In all their dealings each must treat the property of the other as his own, and never pervert the inchoate interest therein as a means of private gain. Either may elect whether he will join in a conveyance, but is precluded from using the right for the purposes of speculation or oppression. The statute is intended to serve the double purpose of shielding the contingent rights of the one against the fraud or imposition of the other, and guarding against the possibility of selfish calculation and unjust exactions and interferences of the one in the management and control of the other's estate."

III. Release by husband.

Although there is authority supporting the opposite view, a number of cases uphold the validity of a contract by a husband to release his interest in the property of his wife on her death. Crum v. Sawyer (1890) 132 III. 443, 24 N. E. 956; Luttrell v. Boggs (1897) 168 Ill. 361, 48 N. E. 171; King v. Mollohan (1900) 61 Kan. 683, 60 Pac. 731, 61 Pac. 685; Eberhart v. Rath (1913) 89 Kan. 328, 131 Pac. 604, Ann. Cas. 1915A, 268; Bradley v. Burgess (1921) 109 Kan. 347, 198 Pac. 967; Re Lauderback (1921) 106 Neb. 461, 184 N. W. 128. See McBreen v. McBreen (1900) 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463, and Grout v. Van Schoonhoven (1844) 1 Sandf. Ch. (N. Y.) 336. See also Wallace v. Bassett (1863) 41 Barb. (N. Y.) 92.

In denying the right of a husband to an assignment of dower in certain lands of which his wife was seised at her death, the court said in Luttrell v. Boggs (1897) 168 Ill. 361, 48 N. E. 171: "Coming now to the contract in question, in Crum v. Sawyer (Ill.) supra, where a contract had been entered into between a husband and wife wherein the husband had released his contingent interest in his wife's lands, it was held that a husband may, for a valuable and adequate consideration, enter into a contract with his wife to release and relinquish all his right and interest of

every kind and nature, including his contingent right of dower, in all her lands, and his interest as heir in her lands and personal estate, and that such a contract, if fairly made, will be binding on him. This case was followed by Heisen v. Heisen (1893) 145 Ill. 658, 21 L.R.A. 434, 34 N. E. 597.

The case under consideration cannot be distinguished from the two cases cited, and in principle it must be controlled by those cases. By the contract Mary A. Luttrell released to complainant all her interest, right, and title to all real estate and personal property, of whatever kind, possessed by him at the time of the marriage. In consideration of this agreement on her part, the complainant released unto her, Mary A. Luttrell, all his interest, right, and title to any and all real estate or personal property owned or possessed by her at the time of the marriage. The agreement upon the part of complainant was predicated upon a valid consideration, and, as he had full power to make the contract, no reason is perceived why it should not be enforced and he be compelled to abide by it."

A husband may, by a postnuptial contract, waive his rights as heir in the estate of his wife as well as his right of dower in her estate. Crum v. Sawyer (Ill.) supra, wherein the court said: "This court has repeatedly held that estates in expectancy, though contingent, are proper subjects of contract, and therefore that assignments by expectant heirs of their future contingent estates, when made fairly and upon valuable considerations, though inoperative at law, will be enforced in equity as executory agreements to convey. Parsons v. Ely (1867) 45 Ill. 232; Bishop v. Davenport (1871) 58 Ill. 105; Galbraith v. McLain (1877) 84 Ill. 379; Kershaw v. Kershaw (1882) 102 III. 307; Simpson v. Simpson (1885) 114 Ill. 603, 4 N. E. 137, 7 N. E. 287. There can be no question, then, that the complainant's contingent interest or expectancy as the heir of his wife, in her real and personal estate, was a proper subject of contract, and the contract in question having been made upon a valu

able consideration, by parties capable of contracting with each other, and, so far as the evidence shows, with entire fairness, it should, as to such contingent interest or expectancy, be enforced according to its terms."

In King v. Mollohan (1900) 61 Kan. 683, 60 Pac. 731, 61 Pac. 685, the court upheld the validity of a contract whereby a husband, in consideration of $3,900 paid to him by his wife, released her and her estate from any claims which he had in her property as her husband, authorized her to dispose of her property free from any claims, immediate or contingent, which he had in it, and stipulated that he would never claim any of the property which she then had or might thereafter acquire.

In the case of Re Lauderback (1921) 106 Neb. 461, 184 N. W. 128, a separation agreement by which a husband released all right of inheritance in the property of his wife was held to be binding on him. The court said: "The position that where husband and wife find it impossible to dwell together in harmony, because of the misconduct of one which would warrant a legal separation, decide to enter into a contract adjusting all the property rights, and each relinquish any rights in the property of the other, and providing for the immediate separation of the parties, is valid and will be enforced, is supported by the great weight of modern authorities, and is in consonance with reason and justice. There is nothing in the record in this case to indicate that the contract of settlement and for separation was unfair or inequitable; the parties having freely entered into. the same and lived up to it until the death of one of the parties, there appears to be no good reason for not enforcing the same."

In McBreen v. McBreen (1900) 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463, the plaintiff brought an action of ejectment based on his right of curtesy in the land of his former wife. The answer averred a separation agreement, by which the wife released her right of dower, and each party

agreed to absolve the other from all obligations by reason of their relation as husband and wife. With respect to the agreement the court said: "That such a contract as the one between plaintiff and his wife, Ann McBreen, is not enforceable at law, is too well settled for discussion, but it does not for that reason follow that it may not be successfully interposed as an equitable defense to an action brought, as in the case in hand, in disregard of its terms and conditions. The contract between the plaintiff and his wife recites that 'finding it impossible to live together in peace and harmony, and deeming it to their mutual interest to separate, and live separate and apart, and it being mutually desirous to settle all matters of property between them, etc. . . And it is further mutually agreed that, upon the performance of this agreement, the said parties hereto shall be absolved from any and all obligations toward each other by reason of their relation as husband and wife, and the said parties hereto hereby release each other from any and all obligations by reason thereof.' The parties complied literally with the terms of the contract, plaintiff's wife, Ann, joining with her husband in the deeds to the property which he thereafter conveyed away, and relinquished her dower in all the real property which he owned at the execution of the contract. The covenants in the agreement were for the mutual benefit of both parties, and were acted upon by them. Ever after the execution of the agreement the parties lived apart, and the plaintiff was relieved of his wife's support, and upon no principle of equity or good conscience should he now be permitted to have possession of the property as tenant by the curtesy, which she afterwards quired with her own means, although it was not her equitable separate estate. By the terms of his own deliberate and solemn covenants he should be estopped, for otherwise it would be the grossest injustice, to prevent which the doctrine of estoppel may be invoked. Wallace v. Bassett (1863) 41 Barb. (N. Y.) 92. It would be hard

ac

to find a case in which the claim of property is so inconsistent with honesty and fair dealing, as is the plaintiff's in this, and if the doctrine of equitable estoppel should be applied in any case it should in this."

In Grout V. Van Schoonhoven (1844) 1 Sandf. Ch. (N. Y.) 336, a trust deed was held valid whereby a husband conveyed to trustees his life estate as tenant by the curtesy initiate, the income to be applied to the support of his wife's issue.

In Wallace v. Bassett (N. Y.) supra, the plaintiff's action was based on a statutory provision for a life estate to the surviving spouse in one third of the real estate of which the other spouse was seised at the time of death. In holding that he was barred from claiming the benefit of this provision, the court said: "I am also of opinion that the plaintiff is estopped from bringing this action by his covenants in the deed of separation. He covenanted with her that he would not claim or demand any property which she should thereafter own, or that she might otherwise acquire. The property in question she did afterwards acquire, and did own, and it is now settled that deeds of present separation are valid, so far as relates to the trusts and covenants by which the husband makes provision for the wife, and the indemnity given to the husband by the trustees. 2 Bright, Husband & Wife, 313; Rodney v. Chambers (1802) 2 East, 293, 102 Eng. Reprint, 380. The covenants were mutual and dependent. The trustees, in her behalf, in consideration of property granted and to be granted for her support by the plaintiff, as well as his covenant to claim no property which she might thereafter own or acquire, covenanted on their part to indemnify him against her future support and future alimony. The plaintiff's covenants were for her benefit, as well as for the benefit of her trustees. Her covenants, and the cov enants of the trustees, were for the plaintiff's benefit. Upon this consideration the plaintiff enjoyed the benefit during her life of all the covenants made by her and her trustees

by 8 7318, as amended by chapter 331, Laws of 1917, which provides that 'a married woman may, by will, dispose of any real estate held in her own right, subject to any rights which her husband may have as tenant by the curtesy or his election thereunder,' is held to be entirely void both at law and in equity, as being against the public policy of the state of Oregon."

In McCrary v. Biggers (Or.) supra, the court said: "As we understand the plaintiff's position, it is that the defendant and his wife entered into an oral contract or agreement at the time the will was executed, by which he agreed to relinquish or surrender his curtesy interest in her property, and that she made her will relying thereon. The gist of this contention is that by such contract or agreement the defendant clothed his wife with power and authority to dispose of her property free from his curtesy interest. Now, it has been held by this court that, when a husband or wife owns property in his or her own right, any inchoate right the other may have therein, such as tenant by the curtesy or by dower, cannot be the subject of a valid contract between them. It was so held in House v. Fowle (Or.) supra, and again in Potter v. Potter (1903) 43 Or. 149, 72 Pac. 702. The contract, therefore, between the defendant and his wife for the relinquishment by him of his curtesy estate or interest in her property, was void, and of course cannot be specifically enforced."

IV. Settlement of property on surviving spouse.

A postnuptial agreement for a settlement of money or other property on the surviving spouse has been held to be valid. Fleischman v. Furgueson (1916) 174 App. Div. 310, 160 N. Y. Supp. 387, reversed on other ground in (1918) 223 N. Y. 235, 119 N. E. 400. See also McCubbin v. Patterson (1860) 16 Md. 179; Stewart v. Todd (1920) 190 iowa, 283, 20 A.L.R. 1272, 173 N. W. 619, 180 N. W. 146.

In Fleischman v. Furgueson (N. Y.) supra, a postnuptial agreement was held to be valid by which each spouse

promised the other that the survivor should have such interest in the estate of the other as accrues in cases of intestacy, the wife's interest, however, to be measured by the laws of Pennsylvania, and the husband's by the laws of New York.

In McCubbin v. Patterson (1860) 16 Md. 179, it appeared that a discharged workman was re-employed on condition that his wages should be held for his wife, or be deposited in a bank for the wife, in order to create a fund for the maintenance of the workman, his wife, and children. Thereafter, on the separation of the husband and wife, both claimed a fund deposited in a bank in accordance with the condition of re-employment. An agreement was made providing for an annual payment from the fund of $75 to each of the parties as long as both were living, and on the death of one spouse for an annual payment of $120 to the survivor for the period of his or her life. The agreement further provided that, on the death of both husband and wife, the balance of the fund should be divided equally between the children of the spouses or their representatives. The husband died, and thereafter his widow died leaving a will in which she attempted to dispose of the fund as her separate estate. The court said: "The agreement adopts the principle of the original arrangement, substituting in lieu of the application of the money arising from the wages, by the wife, to the support of her husband, herself, and their children, the payment of specific sums out of it, to them severally during their joint lives, and of a larger sum to the survivor, and of the balance to their children. Conceding that it is doubtful whether this instrument of writing so bound this married woman as to have precluded her from insisting, upon the death of her husband, that what then remained of this fund should be regarded as a part of his personal estate, in which she was entitled to her distributive share, yet inasmuch as she did not then take that ground, and claim to have it divided between herself and his personal representatives,