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

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 Ill. 349; Re Bell (1905) 29 Utah, 1, 80 Pac. 615.

Neill (1889) 76 Iowa, 459, 41 N. W. 166; Sawyer v. Biggart (1901) 114 Iowa, 489, 87 N. W. 426; Newberry v. Newberry (1901) 114 Iowa, 704, 87 N. W. 658; Baker v. Syfritt (1910) 147 Iowa, 49, 125 N. W. 998; Re Kennedy (1912) 154 Iowa, 460, 135 N. W. 53; Kolb v. Mall (1919) 187 Iowa, 193, 174 N. W. 226; Paup v. Shelby County State Bank (1923) 195 Iowa, 1213, 193 N. W. 529. See also Swartz v. Andrews (1908) 137 Iowa, 261, 126 Am. St. Rep. 285, 114 N. W. 888. Compare the following cases decided under an early statute: Blake v. Blake (1858) 7 Iowa, 46; Robertson v. Robertson (1868) 25 Iowa, 350; McKee v. Reynolds (1869) 26 Iowa, 578.

Massachusetts. Whitney v. Closson (1884) 138 Mass. 49. Compare Aitchison v. Chamberlain (1922) 243 Mass. 16, 136 N. E. 818 (decision with respect to agreement to which trustee for wife was a party).

New York.-Dworsky v. Arndtstein (1898) 29 App. Div. 274, 51 N. Y. Supp. 597; Re Shulenburg (1921) 114 Misc. 155, 187 N. Y. Supp. 251. See also Hungerford V. Hungerford (1900) 161 N. Y. 550, 56 N. E. 117; Townsend V. Townsend (1850) 2 Sandf. 711; Stokes v. Stokes (1922) 119 Misc. 168, 196 N. Y. Supp. 184. See also the following early cases, based on the rule at common law: Carson v. Murray (1832) 3 Paige, 483; Guidet v. Brown (1877) 3 Abb. N. C. 295, 54 How. Pr. 409; Armstrong v. Armstrong (1886) 1 N. Y. S. R. 529; New York L. Ins. Co. v. Mayer (1887) 14 Daly, 318, affirmed in (1888) 108 N. Y. 655, 15 N. E. 444; Graham v. Van Wyck (1852) 14 Barb. 531; Crain v. Cavana (1862) 36 Barb. 410; Wightman v. Schleifer (1892) 63 Hun, 633, 45 N. Y. S. R. 698, 18 N. Y. Supp. 551. Compare Garlick V. Strong (1832) 3 Paige, 440; Everitt v. Everitt (1923) 201 N. .Y. Supp. 305.

Washington.-See Scott V. Stark (1913) 75 Wash. 610, 135 Pac. 643 (decision with respect to homestead

right in property of deceased husband).

Wisconsin. Wilber v. Wilber (1881) 52 Wis. 298, 9 N. W. 163; Leach v. Leach (1886) 65 Wis. 284, 26 N. W. 754.

In Whitney v. Closson (1884) 138 Mass. 49, the material facts of the case were stated in the opinion as follows: "The petitioner undertook to agree with her husband that she would release all claims upon his estate, not merely in consideration of $1,000, but also in consideration of his covenants and stipulations that he would release all claims upon her property, which covenants and stipulations are void and of no effect." In discussing the validity of the contract, the court, in the same opinion, said: "By the common law, husband and wife cannot contract with each other. This disability is not removed by our statutes, which, while enlarging the capacity and rights of married women in important respects, expressly provide that they shall not authorize contracts or suits between husband and wife. Stat. 1874, chap. 184; Pub. Stat. chap. 147, §§ 2, 7. The contract upon which the respondents rely is a contract directly between the husband and wife, without the intervention of a trustee, and is partly executory in character. Neither of the parties could, during their lives, enforce the contract against the other, not merely because of the disability to sue, but for the reason that the contract itself is contrary to law and is void."

In Hungerford V. Hungerford

(1900) 161 N. Y. 550, 56 N. E. 117, a wife brought an action to set aside an agreement with her husband, by which she agreed, in consideration of $1,000 and some furniture, to relinquish all claims on him for support during his life and against his estate after his death. In holding that the lower court properly granted the relief sought, it was said: "It must be borne in mind that a contract between husband and wife is void at law and upheld solely in equity, and then not in every case, but only where the provision for the maintenance of the wife

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or children is suitable and equitable. Schouler, Husband & Wife, § 475; Switzer v. Switzer (1875) 26 Gratt. (Va.) 574; Hendricks v. Isaacs (1889) 117 N. Y. 411, 6 L.R.A. 559, 15 Am. St. Rep. 524, 22 N. E. 1029. In the case last cited Judge Andrews said: court of equity does not limit its inquiry to the ascertainment of the fact whether what had taken place would, as between other persons, have constituted a contract, and give relief, as matter of course, if a formal contract be established, but it further inquires whether the contract was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it.' Because of the distinction between contracts of the character of the one before us and other contracts, the propositions contended for by the counsel for the appellant and the authorities cited in their support do not apply. The referee has found that the provisions for the plaintiff's support were inadequate, and that she was driven into the execution of the agreement by the defendant's ill treatment. For these reasons a court of equity would not uphold the agreement if it were sought to be enforced, and, equally, it should avoid the agreement in an action brought for that purpose. In such an action, ordinarily, the court would require a return by the wife of what she had received from her husband's estate, so far as it was in her power to make restoration; but to go beyond this, and require the wife, as a condition for relief, to return what she had already expended for her support, would practically abrogate the rule that contracts between husband and wife are only upheld where they are fair and equitable."

A contract between a husband and wife to the effect that, on the death of either of them, the survivor shall not have any right or interest in any of the separate property of the deceased spouse, has been held to be invalid in so far as it affects the wife's homestead rights on the death of her husband. Scott v. Stark (1913) 75 Wash. 610, 135 Pac. 643, wherein the 49 A.L.R.-9.

court said: "If the contract was made after marriage, the widow had an interest in the property-either an absolute fee, if it was community property, or a qualified estate or right of occupancy for a limited time, if it was separate property, that could pass only by deed executed with the formalities required by statute. Rem. & Bal. Code, §§ 8745, 8746 (P. C. 143, §§ 1, 3); McMahill v. McMahill (1883) 105 III. 596, 44 Am. Rep. 819." 2. Waiver of dower.

General rule.

In some jurisdictions the methods of barring dower which are approved by statute are deemed to be exclusive, and, in the absence of a provision enabling the wife to release her dower by express contract with her husband, any attempted release to him is regarded as a nullity.

Iowa.-Linton v. Crosby (1880) 54 Iowa, 478, 6 N. W. 726; Shane v. McNeill (1889) 76 Iowa, 459, 41 N. W. 166; Sawyer v. Biggart (1901) 114 Iowa, 489, 87 N. W. 426 (separation agreement); Newberry v. Newberry (1901) 114 Iowa, 704, 87 N. W. 658; Baker v. Syfritt (1910) 147 Iowa, 49, 125 N. W. 998; Re Kennedy (1912) 154 Iowa, 460, 135 N. W. 53. See also Swartz v. Andrews (1908) 137 Iowa, 261, 126 Am. St. Rep. 285, 114 N. W. 888; Kolb v. Mall (1919) 187 Iowa, 193, 174 N. W. 226; Paup v. Shelby County State Bank (1923) 195 Iowa, 1213, 193 N. W. 529. Compare Blake v. Blake (1858) 7 Iowa, 46 (decided under earlier statute); Robertson v. Robertson (1868) 25 Iowa, 350 (decided under earlier statute); McKee v. Reynolds (1869) 26 Iowa, 578 (decided under earlier statute).

Maine. Pinkham v. Pinkham (1901) 95 Me. 71, 85 Am. St. Rep. 392, 49 Atl. 48. See also Rowe v. Hamilton (1824) 3 Me. 63 (rule at common law); French v. Peters (1851) 33 Me. 396.

New York. Dworsky v. Arndstein (1898) 29 App. Div. 274, 51 N. Y. Supp. 597; Re Shulenburg (1921) 114 Misc. 155, 187 N. Y. Supp. 251; Stokes v. Stokes (1922) 119 Misc. 168, 196 N. Y. Supp. 184. See also the follow

ing earlier cases, holding that at common law a married woman has no right to release her dower by express contract with her husband: Carson v. Murray (1832) 3 Paige, 483; Guidet v. Brown (1877) 3 Abb. N. C. 295, 54 How. Pr. 409; Armstrong v. Armstrong (1886) 1 N. Y. S. R. 529; New York Life Ins. Co. v. Mayer (1887) 14 Daly, 318, affirmed in (1888) 108 N. Y. 655, 15 N. E. 444; Graham v. Van Wyck (1852) 14 Barb. 531; Crain v. Cavana (1862) 36 Barb. 410; Wightman v. Scheifer (1892) 63 Hun, 633, 18 N. Y. Supp. 551. See also Townsend v. Townsend (1850) 2 Sandf. 711. Compare Garlick Strong (1832) 3 Paige, 440; Everitt v. Everitt (1923) 201 N. Y. Supp. 305.

v.

In New York it is held that a release of dower by a married woman to her husband, standing by itself, is of no effect, because during coverture the wife's inchoate right of dower can be transferred or released only to one who already has, or by the instrument of release acquires, an independent title to the property. Thus, in Dworsky v. Arndtstein (1898) 29 App. Div. 274, 51 N. Y. Supp. 597, there was involved the effect of a release of dower executed by a married woman to her husband, who was at the time of the execution of the release owner of the premises, and through whom the defendant derived his title. In passing on the validity of the release the court said: "The release was of no effect standing by itself, because during coverture the wife's inchoate right of dower can only be transferred or released to one who already has, or by the instrument of the release acquires, an independent title to the property. Elmendorf v. Lockwood (1874) 57 N. Y. 325. But the statute provides that if, after coverture, a pecuniary provision shall be made to a wife in lieu of her dower, she shall make her election whether she will

take such provision, or whether she will be endowed of the lands of her husband, but she shall not have both. 1 Rev. Stat. 41, § 12. There is nothing here from which it can be said, as a matter of law, that a pecuniary provision was made for this woman as a consideration for this release. Whether it was so made is a question of fact to be determined in any action where that question shall arise, and, when so determined, is conclusive as to the parties to that action, but as to nobody else."

In Stokes v. Stokes (N. Y.) supra, the court said: "It is an elementary principle that a wife may not release to her husband her inchoate right of dower. She may enter into an antenuptial agreement covering the release of dower, but she may not release to him directly. May she, by joining in a deed to a corporation the stock of which is entirely owned by the husband, release that dower right? A corporation is ordinarily to be considered a separate entity, but when I consider all the circumstances before me, the claim of an antenuptial agreement and the evidence introduced to sustain that claim; the nonproduction of the agreement; the withholding of the deed to the corporation by defendant Stokes for over eight years; his possession of it during all that time; the facts attendant upon the execution of the deeds, as evidenced by the oral and documentary evidence,-I do not believe court of equity should be estopped by a mere legal fiction of 'entity.' If a conveyance of property by a husband, even in contemplation of marriage, is bona fide and no right is reserved to him, then, though made to defeat the claim of the wife, it will be good against her. But if it is a mere device or contrivance by which the husband, not parting with the absolute dominion over the property during his life, seeks to do away with the right of inchoate dower, then such an instrument will be ineffectual against her, and, as the court said in Hays v. Henry (1848) 1 Md. Ch. 337: 'One of the badges of fraud in such cases is the retention of the pos

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