Her counsel at that time undoubtedly thought that he had procured a fair, just, and reasonable consideration for her covenant to release her share in the estate of her husband, and to maintain herself, and we heartily concur in that opinion."

Although the marriage relation does not of itself raise a presumption that an agreement by a wife to waive rights in her husband's estate was procured by undue influence, a presumption of undue influence may arise where an agreement of this kind gives the husband an advantage. Re Cover (1922) 188 Cal. 133, 204 Pac. 583, wherein the court said: "Of course, the mere existence of the marriage relation alone will not, in and of itself, suffice to initiate and support the presumption of undue influence, where the transaction between husband and wife is prima facie, or, from all of the circumstances thereof, shown to be, fair and free from any material advantage to the husband from and over the wife. But in those transactions between husband and wife where admittedly the husband secures an advantage over the wife, the confidential relation existing between them may be invoked to bring into operation the presumption of the use and abuse of the relation. In short, a husband, by reason of the marital relation, is bound, in his dealings with his wife, to the highest and best of good faith, and as a consequence is obligated in such dealings not to obtain and retain any advantage over her resulting from concealment or adverse pressure; and he must, if he would avoid the presumption of undue influence emanating from the procurement of any advantage over her, make full and fair disclosure to her of all that she should know for her benefit and protection concerning the nature and effect of the transaction, or else he must deal with her at arm's length and as he would with a stranger, all the while giving her the opportunity of independent advice as to her rights in the premises."

An agreement by a wife, on the verge of her husband's death, to take, in lieu of the interest which she would

otherwise have in his estate, property of much less value, has been held to give rise to a presumption that the contract was not fairly obtained. Redwine v. Redwine (1914) 160 Ky. 282, 169 S. W. 864, Ann. Cas. 1917A, 58.

On the other hand, it has been held that, in jurisdictions wherein a married woman may contract as if she were sole, there is no presumption that a contract of a wife waiving her interest in her husband's estate is fraudulent. Daniels v. Benedict

(Fed.) supra. In that case the court said: "Her acts and rights were governed by the laws of the state of Colorado, where her contract was made, and under those laws no legal presumption can exist that she was sub potestate viri when she made her agreement, because such a presumption would fly in the teeth of the plain provisions of the statutes. They provided that marriage was a civil contract (Mills's Anno. Stat. (Colo.) § 2988); that the property of a married woman at the time of her marriage should remain her separate property, free from the debts and the disposal of her husband (§ 3007); that she could make any contract concerning, and could sell and convey, her personal property as if she were sole (§ 3008); that she could carry on any trade or business as if she were unmarried, and that her earnings therefrom, and for her services, should be her sole and separate property (§ 3012); that the separate deed of her husband should convey no interest in her lands (§ 3017); that she could bargain, sell, and convey her real and personal property, and enter into any contract with reference to the same as if she were sole (§ 3019); that she could sue and be sued in all matters as if she were unmarried (§ 3020); and that she could enter into any contract as if she were sole (§ 3021). Under these statutes the supreme court of Colorado has uniformly held that a married woman is no longer sub potestate viri in that state, and that contracts and conveyances between husband and wife are presumptively valid and effectual,

without proof aliunde of their equity or justice. Wells v. Caywood (1877) 3 Colo. 493; Kellogg v. Kellogg (1895) 21 Colo. 183, 40 Pac. 358; O'Connell v. Taney (1891) 16 Colo. 357, 25 Am. St. Rep. 275, 27 Pac. 888. The result is that the fact that the parties to the agreement of separation occupied the confidential relation of husband and wife did not render it presumptively void, and did not cast upon the appellees the burden of pleading or proving that it was just and fair to the appellant."

While negotiations are being made for the contract, expressions of hope or expectation that marital relations will be resumed do not show that a contract for separation and waiver of the rights of a wife in her husband's estate is fraudulent. Daniels v. Benedict (1899) 38 C. C. A. 592, 97 Fed. 367, supra.

It has been held that a contract by a wife, relinquishing her rights in her husband's estate, is not valid, unless the consideration is of such value as reasonably to compensate her for what she agrees to surrender. wine v. Redwine (Ky.) supra.

Generally.

2. Waiver of dower.

Red

In a large number of cases, since the passage of statutes permitting a married woman to contract as a feme sole, the right of a married woman to release her dower interest by express contract with her husband is recognized.

Illinois. Hamilton v. Hamilton (1878) 89 Ill. 349; Merki v. Merki (1904) 212 Ill. 121, 72 N. E. 9; Carling v. Peebles (1905) 215 Ill. 96, 74 N. E. 87; Stokes v. Stokes (1909) 240 Ill. 330, 88 N. E. 829; Edwards v. Edwards (1915) 267 Ill. 111, 107 N. E. 847, Ann. Cas. 1917A, 64; Kohler v. Kohler (1925) 316 Ill. 33, 146 N. E. 476. See also Adams v. Storey (1890) 135 Ill. 448, 11 L.R.A. 790, 25 Am. St. Rep. 392, 26 N. E. 582. Compare Bottomly v. Spencer (1888; C. C.) 36 Fed. 732 (decided under Illinois lawagreement made prior to enabling acts). Indiana. Brown

v. Rawlings

(1880) 72 Ind. 505; 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. See also Sims v. Rickets (1871) 35 Ind. 181, 9 Am. Rep. 679; Randles v. Randles (1878) 63 Ind. 93.

Kentucky. Redwine v. Redwine (1914) 160 Ky. 282, 169 S. W. 864, Ann. Cas. 1917A, 58; Morgan V. Sparks (1908) 32 Ky. L. Rep. 1196, 108 S. W. 233. Compare Newby v. Cox (1883) 81 Ky. 58 (decided prior to statute).

Maryland. Hill v. Boland (1915) 125 Md. 113, 93 Atl. 395, Ann. Cas. 1917A, 46; Crise v. Smith (1926) Md. -, 47 A.L.R. 467, 133 Atl. 110. See also Duttera v. Babylon (1896) 83 Md. 536, 35 Atl. 64; Pearre v. Grossnickle (1921) 139 Md. 1, 114 Atl. 725. Michigan. Randall v. Randall (1877) 37 Mich. 563; Rhoades v. Davis (1883) 51 Mich. 306, 16 N. W. 659; Owen v. Yale (1889) 75 Mich. 256, 42 N. W. 817; Wright v. Wright (1890) 79 Mich. 527, 44 N. W. 944; Dakin v. Dakin (1893) 97 Mich. 284, 56 N. W. 562; 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.

Pennsylvania. Fennell's Estate (1904) 207 Pa. 309, 56 Atl. 875; Irvin v. Irvin (1895) 169 Pa. 529, 29 L.R.A. 292, 32 Atl. 445. See also the following earlier decisions, holding an agreement by a wife to release her dower right in the lands of her husband to be valid and binding in equity, where made a part of articles of separation; 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.

(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."

"We

In Dakin v. Dakin (1893) 97 Mich. 284, 56 N. W. 562, it was said: 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. 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

While

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 Ideed 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) 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