with the deceased whereby she had expressly released and relinquished all her claim to dower. The court said: "The only remaining question is, Has the demandant released, forfeited, or in any manner barred her right to dower? Premising that what we say upon this subject must be considered as applicable to the case in the common-law forum, and without any intimation as to whether a remedy exists elsewhere, we are quite sure that the agreement said to have been entered into between Shadrach Martin and the demandant cannot be looked to as creating any bar or impediment to a recovery of dower. If the husband by jointure after marriage make a competent livelihood of freehold for the wife, of lands and tenements, to take effect presently, in possession or profit, after the decease of the husband, and to continue for the wife's life, even this shall not bar her dower, unless she elects to accept it in lieu of dower after her husband's decease; for she is not capable of consenting to such provision during coverture.

. . Much less would the inadequate provision made by the parties in this case to continue two years, and entered into during their marriage, have the effect of barring the wife's right. It is well-settled law that a release of dower from the wife to the husband either before or during the coverture is void."

In England it has been held that a contract of separation executed by a husband and his wife and a trustee for the latter, containing certain clauses alleged to be in release of the wife's dower interest, would not bar her right to dower under the Statutes of Distribution.

Slatter v. Slatter

(1834) 1 Younge & C. Exch. 28, 160 Eng. Reprint, 12.

Modification of rule.

However, in a number of jurisdictions, by the application of the doctrine of estoppel or election, rather than by a distinct recognition of the existence of a contractual power on the part of the wife, an agreement to release dower to the husband, which in its nature is fair and just, has been held to be a bar to the wife's right

of dower in the estate of her husband, she having retained the benefits accruing under the agreement.

Georgia.-Lively v. Paschal (1866) 35 Ga. 218, 89 Am. Dec. 282; Butts v. Trice (1882) 69 Ga. 74.

Iowa. Compare Shane v. McNeill (1889) 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.

Maine. Woods v. Woods (1885) 77 Me. 434, 1 Atl. 193 (contract executed pending divorce proceedings). See also Bubier v. Roberts (1862) 49 Me. 460. Compare Pinkham v. Pinkham (1901) 95 Me. 71, 85 Am. St. Rep. 392, 49 Atl. 48.

New York. Jones v. Fleming (1887) 104 N. Y. 418, 10 N. E. 693; Barnes v. Klug (1908) 129 App. Div. 192, 113 N. Y. Supp. 325; Hogg v. Lindridge (1912) 151 App. Div. 513, 135 N. Y. Supp. 928, denying motion for leave to appeal in (1912) 151 App. Div. 885, 136 N. Y. Supp. 1137, affirmed in (1912) 206 N. Y. 743, 100 N. E. 1128. See also Crain V. Cavana (1862) 36 Barb. 410; Doremus V. Doremus (1892) 66 Hun, 111, 21 N. Y. Supp. 13; Dworsky V. Arndtstein

(1898) 29 App. Div. 274, 51 N. Y. Supp. 597. Compare Guidet v. Brown (1877) 3 Abb. N. C. 295, 54 How. Pr. 409 (under earlier rule).

Tennessee. Chaney v. Bryan (1885) 15 Lea, 589. See also Watkins v. Watkins (1834) 7 Yerg. 283; Parham v. Parham (1845) 6 Humph. 287.

In Maine, where it is provided by statute that a married woman may be barred of dower in her husband's lands by pecuniary provision made for her in lieu of dower, with her consent, contracts containing such provisions executed by husband and wife have been deemed to be valid, unless within the statutory period the wife elected waive their provisions. Woods v. Woods (1885) 77 Me. 434, 1 Atl. 193 (contract executed pending divorce proceedings). See also Bubier v. Roberts (1862) 49 Me. 460.

Thus, in Woods v. Woods (Me.) supra, the court said: "A married woman may be barred of dower in her husband's lands by a pecuniary provision

made for her, instead of dower with her consent; and without her consent, unless within six months after her husband's death she waives such provision, and files the same in writing in the probate office. . . . In this case, while her husband was alive, the plaintiff received from him $1,000 in money, and some other property, in consideration of which she agreed in writing, under her hand and seal, that the property so received should be in full discharge of all claim, right, or interest upon him and upon his property, for her support and maintenance, by way of dower or otherwise. Her husband is now dead, and the question is whether this agreement bars her right to dower. We think it does. That her husband intended that the provision so made for her should be in lieu of dower, and that she deliberately and advisedly accepted it as such, there can be no doubt. The express wording of the agreement will admit of no other interpretation. We think she must abide by the agreement she then made."

But in Pinkham v. Pinkham (1901) 95 Me. 71, 85 Am. St. Rep. 392, 49 Atl. 48, it was held that a mutual release by husband and wife of the interest that each may have in the property of the other is not such a "pecuniary provision" as will satisfy the statute.

In New York by statute it is provided 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 that provision or whether she will be endowed of the lands of her husband, but she shall not have both. Under that statute it has been held that if a wife enters into an agreement with her husband, releasing dower in lieu of a valuable consideration, she cannot accept and retain the consideration and thereafter claim her dower interest in his land, as the executed agreement is binding on her as an election. Jones v. Fleming (N. Y.) supra; Barnes v. Klug (1908) 129 App. Div. 192, 113 N. Y. Supp. 325; Hogg v. Lindridge (1912) 151 App. Div. 513, 135 N. Y. Supp. 928, denying motion for leave to appeal

in (1912) 151 App. Div. 885, 136 N. Y. Supp. 1137, affirmed in (1912) 206 N. Y. 743, 100 N. E. 1128. See also Crain v. Cavana (1862) 36 Barb. (N. Y.) 410; Dormeus v. Doremus (1892) 66 Hun, 111, 21 N. Y. Supp. 13; Dworsky v. Arndtstein (1898) 29 App. Div. 274, 51 N. Y. Supp. 597. Compare Guidet v. Brown (1877) 3 Abb. N. C. (N. Y.) 295, 54 How. Pr. 409 (under earlier rule).

Thus, in Hogg v. Lindridge (1912) 151 App. Div. 513, 135 N. Y. Supp. 928, denying motion for leave to appeal in (1912) 151 App. Div. 885, 136 N. Y. Supp. 1137, affirmed in (1912) 206 N. Y. 743, 100 N. E. 1128, supra, the court said: "The complaint alleges that on or about January 28, 1905, the plaintiff entered into an agreement of separation with her husband, Charles B. Hogg (now deceased), in and by which he agreed to pay her the sum of $5,200 per annum during her life or until her remarriage, and that he would effectively provide by his last will and testament for the payment of said amount to her yearly after his death if she survived him. . . . That thereafter her said husband prepared and executed his will, in and by which he secured to her the payment of said yearly sum of $5,200 during her life or until her remarriage, but provided that such bequest should be in lieu of dower in any real property of which he might die seised. . . . I think the terms of this agreement establish conclusively the understanding and intent of the parties that the payment of the sum therein provided should extinguish the plaintiff's right of dower. The plaintiff covenanted that at the request of her husband she would unite with him at any time in the execution of deeds of any real property he then owned or might thereafter acquire, 'without compensation or payment other than herein before provided,' and such covenant, with all the other provisions and agreements in the instrument, is to apply to, bind and be obligatory upon the heirs, executors, administrators, personal representatives, successors, and assigns of the parties, or either of them,

'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."

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

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."

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 (Mass.) supra, it appeared that a husband 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 accordingly 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