session of the property by the husband, after the transfer of the title, or keeping the deed in his hands after its execution.' Following this reasoning, I have arrived at the belief that the deeds to the corporation were a mere subterfuge, and in no way released the plaintiff's inchoate right of dower. In the disposition of this matter, I have taken into consideration the confidential relationship existing between the plaintiff and defendant Stokes; the experience and business knowledge had by the respective parties; and there is no question in my mind but that the dominant position throughout was occupied by the defendant Stokes. The evidence fully sustains the claim that this defendant controlled her actions, at least in the early days of their marriage, and that, in signing the deeds to the corporation, she did so under his influence, and had no knowledge that she was being called upon to release forever every right she had in the property."

In the case of Re Shulenburg (1921) 114 Misc. 155, 187 N. Y. Supp. 251, the court considered the validity of a contract between a husband and wife purporting to release her interests, including the right of dower, in his estate in consideration of a small sum of money. The court said: "The instrument executed by the petitioner November 25, 1889, to her husband, the testator, was an attempt on her part to release unto the testator, his heirs, and assigns, all her dower and other rights which she had or might have in and to testator's property; in other words, it was a contract between husband and wife. Is it a good and valid contract, and one which might be enforced by either party to it? At common law no contract made between husband and wife was forceable. Hendricks v. Isaacs (1889) 117 N. Y. 411, 6 L.R.A. 559, 15 Am. St. Rep. 524, 22 N. E. 1029. Only so far as the inability of husband and wife. to contract at common law has been abrogated by statute can they contract in this state; therefore the legal effect of this instrument must be determined under and by the provisions of chapter 381 of the Laws of 1884,

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which provide: 'Section 1. A married woman may contract to the same extent, with like effect and in the same form, as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary. Section 2. This act shall not affect nor apply to any contract that shall be made between husband and wife.' The purpose of this statute was to secure to married women, free from control of her husband, the earnings and profits of her own business and her own labor and services carried on and performed on her own and separate account which at common law would have belonged to her husband. Suau v. Caffe (1890) 122 N. Y. 320, 9 L.R.A. 593, 25 N. E. 488. This act of the legislature gave to contracts between husband and wife no force or effect other than they had at common law, and, as the contract is void and of no effect under the law as it existed at the time, the petitioner could not, and did not, release to her husband, the testator, or to his heirs or assigns, any of the claims or rights to his property that she has under § 2670 of the Code, and to the exempt articles which she seeks by this proceeding to have set aside to her. Wightman v. Schliefer (1892) 45 N. Y. S. R. 698, 18 N. Y. Supp. 551; Dworsky v. Arndtstein (1898) 29 App. Div. 274, 51 N. Y. Supp. 597; Saratoga County Bank v. Pruyn (1882) 90 N. Y. 250; White v. Wager (1862) 25 N. Y. 328; Graham v. Van Wyck (1852) 14 Barb. (N. Y.) 531; Crain v. Cavana (1862) 36 Barb. (N. Y.) 410; Townsend v. Townsend (1850) 2 Sandf. (N. Y.) 711; Lawrence v. Lawrence (1900) 32 Misc. 503, 66 N. Y. Supp. 393. The facts in this case are rather unusual, both parties, no doubt, having entered into this contract in good faith and believing at the time that the same was valid, and, although petitioner and testator have lived separate and apart for a period of approximately thirty-one years, yet I must conclude and decide that the petitioner is not estopped from claiming

her rights under the statute as widow of the deceased."

However, in Everitt v. Everitt (1923) 201 N. Y. Supp. 305, a nisi prius case, it appeared that, while a husband and wife were separated, though living in the same house, they made a separation agreement by which the wife released her right of dower and her right to support by her husband, and the latter contracted to pay her $1,800 per year. In refusing to set aside the agreement, the court said: "Was the contract void as being against public policy, no trustee having been injected into the agreement? Such is the holding of most of the authorities, if it be found as a fact that the parties were living together at the time of the agreement, and thereafter separated because of it. Gilbert v. Gilbert (1893) 5 Misc. 555, 26 N. Y. Supp. 30; Poillon v. Poillon (1900) 49 App. Div. 341, 63 N. Y. Supp. 301; Maney v. Maney (1907) 119 App. Div. 765, 104 N. Y. Supp. 541; Sunderlin v. Sunderlin (1908) 123 App. Div. 421, 107 N. Y. Supp. 979; Boyd v. Boyd (1909) 130 App. Div. 161, 114 N. Y. Supp. 361; Winter v. Winter (1908) 191 N. Y. 462, 470, 16 L.R.A. (N.S.) 710, 84 N. E. 382. The difference in the situation brought about by the intervention of a trustee in the contract is based upon a fiction that it is going to be hard to maintain much longer, in view of the modern tendency of legislation to make men and women equal, and equally free to make contracts. It is doubtful if women can much longer retain all the advantages they enjoyed under the old régime while acquiring all the advantages under the new. But, in any case, a finding is proper, under all the circumstances of this case, that the parties were separated at the time of, and before, making the contract sought to be set aside. The facts of this case are quite similar to the facts in Tirrell v. Tirrell (1920) 190 App. Div. 463, 180 N. Y. Supp. 49, where the appellate division found that the parties were actually separated at the time of the contract. This finding was not reversed or disapproved by the court of appeals in (1921) 232 N. Y.

224, 133 N. E. 569, but the latter court reversed the court below on the theory of inadequacy of consideration. In the present case the parties agreed to separate nearly a month before the contract was signed. A trunk was procured for the plaintiff to pack her clothes in. The contract was drawn, discussed, revised, and finally executed, with a recital in it that the parties had theretofore separated. A careful study of the whole case makes it clear that, except for the mere fact that the parties existed under the same roof, they were as effectually separated as husband and wife could be."

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In Iowa and Oregon the rule obtains that a married woman has no right to release her dower interest by express contract with her husband, as it is specifically provided by statute that when property is owned by either husband or wife the other has no interest therein which can be the subject of contract between them. ton v. Crosby (1880) 54 Iowa, 478, 6 N. W. 726; Shane v. McNeill (1889) 76 Iowa, 459, 41 N. W. 166; Sawyer v. Biggard (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; 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; House v. Fowle (1890) 20 Or. 163, 25 Pac. 376, subsequent appeal in (1892) 22 Or. 303, 29 Pac. 890. See also Swartz v. Andrews (1908) 137 Iowa, 261, 126 Am. St. Rep. 285, 114 N. W. 888. 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).

In Linton v. Crosby (Iowa) supra, the sole question presented for determination was whether a contract of a married woman entered into with her husband whereby she relinquished to him her right of dower was valid.

The court said: "The question here presented is not one of difficulty, and may be disposed of upon a brief consideration. Code, § 2203, is in the following language: 'When property is owned by either the husband or wife, the other has no interest therein which can be the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or wife who is not the owner of the property, except as provided in this chapter.' This provision relates to the interest which a husband or wife holds in the lands owned by his or her spouse which arises under the marriage relations. It does not refer to a property interest that may be based upon contract, or may be derived from sources other than the marriage relation. The section evidently contemplates and includes in its language the dower estate. Upon the marriage relation this estate is based. The exception at the close of the section refers to § 2214, which provides that expenses of the family, and of the education of the children, are chargeable upon the property of the husband and wife; contracts made by one spouse, under which such expenses are incurred, may be enforced against the other. Sections 2207 and 2208 provide for the enforcement of such contracts in cases of abandonment of the association required by the marriage relation. The exception cannot be construed as applicable to contracts relating to dower. Section 2202 provides that a married woman may own, convey, and devise property acquired by descent, gift, or purchase, to the same extent and in the same manner as such acts may be done by the husband; and § 2206 declares that 'a conveyance, transfer, or lien, executed by either husband or wife, to or in favor of the other, shall be valid to the same extent as between other persons.' These provisions relate to property owned absolutely by the husband and wife in their own right, and not to the interest one may have in lands of the other. This construction of the several sections cited will give effect to all. It is, too, in accord with

the obvious meaning of the language of each. Section 2203 was first introduced into the present Code; it had not before been the law. Prior thereto this court had held that, under an agreement to separate, a husband and wife could relinquish to each other dower held by each in the property of the other. Robertson v. Robertson (1868) 25 Iowa, 350; McKee v. Reynolds (Iowa) supra. The provision just cited was intended to change this rule." However in Baker v. Syfritt (1910) 147 Iowa, 49, 125 N. W. 998, the court said: "In this state a married woman is, equally with her husband, competent to dispose of her estate by will. Code, § 3270. Under our statutes, and according to numerous decisions of this court, they may buy from and sell to one another, and the conveyance of real estate from one to the other is effective without the interposition of a trustee. Code, § 3157. The only limitation imposed by statute upon their competency to contract with each other in relation to their separate estates is found in Code, § 3154, which provides that neither has any interest in the property of the other which can be made the subject of contract between them. This restriction invalidates agreements the subject of which is the right which, by reason of the marriage relation, one of the parties has in property owned by the other. It goes no farther. . The inchoate rights which each has in the property of the other by virtue of their marriage are not property, and the statute wisely provides that they shall not be the subject of speculative transactions between them, but they may freely deal with each other concerning property owned by either, although the near or remote result of their dealings may be the loss or extinguishment of an inchoate right. For instance, husband and wife may make a contract of partnership into which their individual property shall be merged as capital, thereby putting to risk the inchoate rights of each in the other's estate, but no one will contend that such an agreement is within the prohibition of the statute. If hus

band and wife each own a quarter section of land, and they enter into an agreement by which they unite and convey both tracts to a third person in exchange for a half section conveyed to the wife alone, it cannot be doubted that this also is a perfectly valid transaction, although the result of it is a radical change in their inchoate rights. Each has relinquished such right in a quarter section, and the husband has acquired such right in a 320-acre tract-all of which was necessarily involved in the original agreement between them. This is not in violation of the statute, because the subject of the contract is tangible substantive property owned by the parties, while the effect upon their inchoate rights follows only as incident to changes in ownership of the fee, and is effected by operation of law. Coming a step nearer to the case in hand, we see no good reason why husband and wife may not agree to unite their separate estates in the creation of a trust for the benefit of a third person, who shall come into the legal title and right of possession upon the death of the survivor. If to that end they execute a joint instrument, clearly expressing their purpose, then, whether it be called a contract, compact, will, or conveyance, we think it should be treated as a relinquishment of dower right, or, at worst, when one maker has died without attempting to revoke it, the other should be held estopped to set up any right which tends, in whole or in part, to the defeat of the common purpose. A contract is none the less a contract because it contains provisions which are testamentary in character, nor is a will any less a will, if properly executed, because it embodies contractual features."

In Newberry v. Newberry (1901) 114 Iowa, 704, 87 N. W. 658, the court said: "Appellant's counsel cite cases to the effect that the wife's interest in her husband's real estate during his life is but a contingent interest, a mere inchoate right of dower incapable of being transferred or released except to one who has, or by the same instrument acquires, an in

dependent interest in the estate. While these cases hold that the inchoate right of dower is not an estate, they recognize that it is a contingent interest; and we think, under our statute, that interest cannot be the subject of contract between husband and wife."

In Kolb v. Mall (1919) 187 Iowa, 193, 174 N. W. 226, the court said: "While indebted to plaintiff's decedent, defendant Sam Mall sold a farm to one Benda. The defendant Addie B. Mall, his wife, refused to join in the conveyance to Benda unless her husband would pay her the sum of $6,000 out of the purchase price. The husband agreed to make such payment, and it was made. This sum was invested in a mortgage, which, as we gather from the record, is still owned by her. One prayer of the plaintiff is a decree that, as to so much of the said $6,000 as may be necessary to pay plaintiff's claim in full, Addie B. Mall holds in trust for plaintiff. The appellant contends, appellees concede, and we hold, that this arrangement between husband and wife was unenforceable, because violative of § 3154 of the Code, which prohibits any contract touching the inchoate right of one spouse in the property of the other. See Shane v. McNeill (1889) 76 Iowa, 459, 41 N. W. 166, and Sharff v. Hayes (1906) 132 Iowa, 609, 110 N. W. 24. Such a contract is invalid, and cannot be enforced so long as it remains executory."

In Maine, although the rights of a married woman have been extended by enabling statutes, she has not acquired the absolute right to release her dower by express contract with her husband. 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. In Pinkham v. Pinkham (Me.) supra, the following agreement was asserted as a bar to the widow's right to dower: "By mutual consent and agreement this day entered into by and between Elisha F. Pinkham and Frances O. Pinkham, both of Augusta,

Maine, man and wife, and for a valuable consideration paid by the one unto the other, receipt of which is hereby acknowledged, each does hereby release and discharge, convey and transfer unto the other, all of his right, title, and interest in dower of his or her real estate of which he or she is now seised or possessed, and of which he or she may die seised or possessed. And likewise do further hereby acknowledge full and complete satisfaction for and of each in the other's personal estate at time of his or her decease, hereby waiving and canceling and discharging each unto the other all claim and right of claim which each may have at the time of the other's decease in each other's estate, whether by allowance or widow's or widower's thirds, under general laws of the state, excepting this writing shall not cut nor interfere with any provision made in the will of the party who shall first decease, if any such provision shall be made in favor of the other." The court said: "But is the agreement valid? We think not. At common law a wife could not bar her dower by a release to her husband during coverture. . . If such power now exists, it must be by reason of some enabling statute. . If the power be sought in the general statutes extending the powers of wives to contract with their husbands, we think the search will be unavailing. Certainly no such power is expressly given, and we think it is not given by any fair intendment. .

Such statutes, as was said in that case, 'must be construed strictly as in derogation of the common law, and as modifying a long approved policy.' Now, because the statutes empower a wife to convey her real estate to her husband, a matter of bargain and sale, or gift, it does not follow that she may devest herself of her dower right, or, as we now say, her right and interest by descent, by simply contracting mutual releases with her husband. The two matters are different. The right and interest by descent arise by reason of the marital relation, and continue, unless barred, as long as that relation exists. It is not barred

by a sale to the husband; for if the wife convey her real estate to her husband, her inchoate right by descent springs at once into existence. It is not defeated nor barred. The law jealously regards the rights of a wife in the estate of her husband. She may not be barred by his deed or his will, unless she joins in the one, or is willing to accept the provisions of the other. She is even protected against her own too easily persuaded confidence in her husband, her own improvident contracts with him. For if, during coverture, jointure or pecuniary provision is made for her, even with her consent, and her dower or right and interest by descent would be thereby barred, she may waive the provision, and save her interest. . . Had it been the intention of the legislature to grant to wives a power of so serious a character and of such doubtful utility to them as the irrevocable power claimed in this case would be, we think that intention would have been more clearly expressed."

In Davis v. Davis (1873) 61 Me. 395, it was held that a wife cannot release her inchoate right of dower to her husband by a parol agreement.

Likewise, in other jurisdictions, the common-law rule still obtains to the effect that a married woman does not have the right to release her dower to her husband by express contract with him, and any such attempted release made during coverture is therefore void and unenforceable as against the wife.

Martin v. Martin (1853) 22 Ala. 86; Stilson v. Stilson (1878) 46 Conn. 15 (contract executed pending divorce proceedings); Seeley's Appeal (1888) 56 Conn. 202, 14 Atl. 291 (contract executed pending divorce proceedings); McCaulley v. McCaulley (1884) 7 Houst. (Del.) 102, 30 Atl. 735.

Thus, in Martin v. Martin (Ala.) supra, the demandant, alleging that she was the widow of the deceased, filed a petition for the allotment of her dower. In opposition to her petition it was alleged inter alia that, for a valuable consideration, the demandant had entered into an agreement