such security. The attorney for the wife was assured that the husband would give such security and intended in good faith to carry out the provisions of this covenant; and, unless some inflexible rule of law prevents a court of equity from enforcing it, this appellant should be compelled to do what he agreed to do, and especially where he has, since the agreement, required the other party to the agreement to relinquish her right of dower. in his property and to comply with the other provisions of the agreement, which demand she has complied with. Common honesty requires that this appellant should comply with the agreement thus formally made on his part, the benefits of which he has received. The law recognizes the obligation upon the husband and father to provide for the support of his wife and children; and when a husband and wife have separated and are living apart, the covenant on behalf of the wife to accept from the husband a certain sum of money in lieu of this obligation of support and maintenance for herself and her children, together with a relinquishment by the wife of her dower in her husband's estate, and all interest in any property which he then owns or should subsequently acquire, with a relinquishment of the right to administer upon his estate in case of intestacy, is ample consideration for the promise of the husband to pay the wife the sum of money that has been agreed upon for the support and maintenance of herself and her children. There is nothing to show that the amount agreed upon was in any way excessive, or that the agreement itself was not a perfectly fair one. The law recognizes the binding force of such an agreement, and will enforce it."

In Canada it has been held that a separation deed executed by a married woman and her husband and trustees on her behalf was valid, and that the wife could not claim dower in her husband's estate, where the deed contained a covenant releasing her right to dower and it appeared that she had retained the consideration and the benefits accruing under

the deed. Eves v. Booth (1900) 27 Ont. App. Rep. 420, affirming (1899) 30 Ont. Rep. 689.

Likewise it has been held that a contract whereby the husband agreed to turn over certain property and moneys to his wife in consideration of her releasing her dower in certain lands which the husband wished to convey to a third person was a valid agreement, and not contrary to public policy. Lavin v. Lavin (1882) 2 Ont. Rep. 187.

c. View in Missouri.

In Missouri the validity of a contract by a wife for an adequate consideration, to waive or settle rights of the surviving spouse in the other's estate, seems to be unsettled, as the later cases have been decided on the inadequacy of the consideration or the inequitable character of the contract. Egger v. Egger (1910) 225 Mo. 116, 135 Am. St. Rep. 566, 123 S. W. 928; Re Wood (1921) 288 Mo. 588, 232 S. W. 671.

In Egger v. Egger, supra, the court said: "The Married Woman's Act of 1889, now § 4335, Revised Statutes 1899, says that a married woman, for the purposes therein mentioned, is to be deemed a feme sole so far as to enable her to make contracts, and we have held in the cases above cited that she was thereby empowered to make contracts with her husband the same as a feme sole could do. The lawmaker certainly meant to say that a married woman could make any contract that a feme sole could make, but it is not so clear that the legislature meant to say that she could make a contract with reference to a subject that a feme sole could have no control of, that is, a wife's prospective distributive share of her husband's estate. A feme sole in contemplation of marriage might make an antenuptial contract on that subject, but she would then be in fact a feme sole, not a married woman acting quasi feme sole under authority of our Married Woman's Statute. A good deal might be said on both sides of that question, and it is yet an open one. But assuming, without deciding, that un

der § 4335 a married woman could make a contract disposing of what the law gives her in § 2937, such contract would have to be supported by a valuable consideration. What was the consideration that passed to the wife for this contract? It starts out with the recital that she has a great desire to be freed from embarrassment or cares of business when her husband dies, therefore she has 'requested, induced and agreed' with her husband that he shall make this provision for her in his will, which provision is that the executor and trustee shall set apart mortgage notes to the amount of $20,000, out of the interest arising from which he is to pay her $75 a month during her life, the principal to be distributed to the residuary legatees at her death; then the contract goes on to say in effect that, as she is so anxious for it, he agrees to do that, and in consideration of his promise to do so she releases all claims of every kind to his estate, specifying dower, homestead, and 'all claims, rights, interests, or demands' existing then or to arise thereafter at his death. At that time the husband owned real estate to the value of $100,000 and personal property approximating $200,000; at least, that is what the estate was estimated to be worth at his death, which occurred three or four years afterwards, and there is nothing in the record to suggest that there had been any particular increase between the date of the contract and the death of the husband. Of course there was a possibility of unforeseen disaster coming before his death to sweep away so much of the personal estate that her share would be less than the value of $75 a month, but one would be straining far to find that a moving cause for the contract. Besides, there was her dower right in $100,000 worth of real estate, of which she could not be deprived either by her husband's act or his misfortune. And even the recitals in the contract itself exclude the idea that it was made to guard against possible disaster; according to the recitals it was not to save her from a reasonably expected loss, but from the embarrass

ment and care that the possession of so much wealth would entail. There is some difference between counsel as to whether at that time she knew the extent of her husband's fortune. If she did not know, it was the duty of her husband to have informed her; if she did know, as counsel for appellants think, it is all the worse for the contract. If she knew at the death of her husband she would be entitled to dower in real estate of the value of $100,000 and one sixth of personal property to the value of nearly $200,000, and that her husband could not by his will deprive her of it, and yet agreed that, if he would make a will giving her $75 a month during her life, she would take that in lieu of the large share of the estate which the law gave her, it was a mere nudum pactum. There was nothing given her at the time; there was only a promise to give her out of his estate by will at his death something very much less than what would have been her own by right under the law. If, instead of a mere promise to make a will, the contract had provided for the then transference to a trustee of mortgage notes to the amount of $20,000, to secure her the monthly sum of $75 for life to guard against possible vicissitudes of fortune, a different case would be presented, as to which we say nothing. Here we have a mere promise to make a will giving her less than she would be entitled to if there was no will. Counsel for appellants suggest that we turn the case around, and suppose there was no will, and that at the death of the husband the promised provision for her in the contract exceeded the value of her dower and her statutory share in the estate, could the executor and heirs avoid the contract on the ground that it was not supported by a consideration? The contract is not binding on one unless it is binding on both. there was no consideration to support the agreement to relinquish her dower and her other claims against the estate, that relinquishment is not binding on her, and constituted no consideration to support the promise to make a will. A mere promise by a debtor

If

to a creditor to pay him a sum less than the amount of the debt when due is no consideration to support an agreement by the creditor to accept the smaller sum in full satisfaction of the debt. The trial court found that there was no consideration to support the contract in question, and our judgment is that that finding was correct. We are also of the opinion that, under the peculiar circumstances of this case, there was a very strong fiduciary relation between the husband and the wife at the time this contract was entered into, and, even if we should adopt appellants' view that the possible diminution of the personal estate between the date of the contract and the death of the husband formed an appreciable consideration to support the contract, still the burden was on the defendants to show that the old wife was treated fairly and no advantage taken of her. That they have not shown; on the contrary it was an exceedingly unfair contract, and the circumstances combine to show that she was imposed upon."

In the case of Re Wood, supra, the court said: "Assuming, however, that a married woman may make a contract with her husband disposing of her prospective distributive share in his estate, certain essentials, accentuated by their marital relations, must be present to render such a transaction valid. There must be a consideration; the release must be unequivocal; and it must be fair, reasonable, and just. Henry

Wood's promise, viewed in the light of its legal effect, did not lessen the obligation imposed upon him by law to support and maintain his wife. Her obligation, stripped of unnecessary words, is that she will let him alone. No principle in the law of contracts is better established than that a promise to do what the promisor is required by law to do constitutes no consideration for the promise. If, therefore, Mrs. Wood, by her husband's promise, got no more than that to which she was entitled under the law, and presently, but not pertinent here, we will contend that she got less, there was lacking from the transac

tion that necessary essential to a valid contract; namely, a consideration."

There are, however, in Missouri dicta to the effect that a wife may enter into a valid contract with her husband to relinquish her right of Idower in her husband's land in consideration of a conveyance to her of another tract of land. Halferty v. Scearce (1896) 135 Mo. 428, 37 S. W. 113, 255; McBreen v. McBreen (1900) 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463. In the case last cited the court said: "While it was not expressly so decided in Halferty v. Scearce, supra, there is an implied recognition in that case of the right of husband and wife to contract for the relinquishment of her dower right in her husband's land in consideration for a tract of land deeded by him to her; and if a wife can make such a contract with her husband, with respect to her dower, it is difficult to see why a husband may not make a similar contract with his wife in respect to his interest by the curtesy, in land which she then owns or which she may afterwards acquire. In that case Sherwood, J., said: "The above case necessarily gives tacit recognition to the idea that a wife possessed of a mere dower right in her husband's land may so contract with him as to make valid a conveyance to her of a tract of his land in consideration of the concurrent relinquishment by her of her dower right in another tract of her husband's land; such relinquishment constituting a consideration for such conveyance to her."

In Shaffer v. Kugler (1891) 107 Mo. 58, 17 S. W. 698, it appeared that a parol postnuptial agreement was made by which a wife agreed that, if her husband would sell his land and move on her land and improve it, he should have her land absolutely for his own use after her death. The contract was held to be void. It is important to note, however, that the contract was made before the passage of enabling acts for married women, and that this fact was recognized by the court in the opinion. The court has subsequently disapproved of the rule

In an earlier case, Roberts v. Walker (1884) 82 Mo. 200, the court said: "It will be observed that the postnuptial contract for jointure, provided for by § 2202, supra, whether by deed of conveyance, assurance or agreement, has no valid or binding force on the wife, until, by some act of hers, after discoverture, she in some way acquiesces in or accepts the provision made for her benefit in said postnuptial contract or agreement. Under this section the widow, at her election, may renounce the jointure and have dower; but clearly in equity she is not entitled to both. When such provisions, thus made, are fair and reasonable, and the widow, after discoverture, understandingly acquiesces in or accepts the provision thus made in lieu of dower, the authorities, we think, hold, and justly hold, that she will not be permitted to hold on to the jointure, so received and also claim dower. In cases of this sort, the question depends less upon the nature or form of the agreement, by which the jointure is attempted to be secured, than upon the subsequent acts and conduct of the widow, when she becomes discovert. It is that which imparts to the contract its vital and binding force, whatever its form. This, at least, is the view of courts of equity, in controversies of this sort."

It has been held in Missouri that a postnuptial agreement made with the intervention of a trustee and releasing dower rights of the wife is valid. Garbut v. Bowling (1883) 81 Mo. 214.

d. View in New Jersey.

In New Jersey the rule has been laid down that a contract between husband and wife whereby the latter releases her dower rights in the land of the former, although void at law, may be enforced in equity if it is fair and reasonable and based on a good consideration. Ireland v. Ireland (1887) 43 N. J. Eq. 311, 12 Atl. 184 (separation agreement). The court said: "At law, upon the principle of mutual disability and upon the presumption that the wife is sub potestati viri, a hus

band and wife may not contract with each other, and a wife cannot execute a valid release of dower in the real estate of her husband, in any other way than by joining with him in a conveyance to a third person. . . The statute of this state leaves the ability of the husband and wife to contract as it was at the common law. Its language is as follows: 'Nor shall anything herein enable the husband or wife to contract with or sue each other, except as heretofore.' . . . In construing this language, Chief Justice Beasley . . . says that its 'object was to leave the husband and wife, touching their capacity to bargain together, on the ancient footing of the common law. The clause is virtually a legislative declaration that, as heretofore, they may enter, inter sese, into equitable agreements, but not into legal agreements. It was obviously intended that the court of equity should, as it had always done prior to the amplification of the rights of wife, exercise a supervision over the engagements of married persons.'

Conceding, for the purposes of this case, that the court may countenance such enforcement, it is clear that it should do so only in a case which, after a cautious examination of all the circumstances which surround and enter into the agreement, appears to be fair to the wife, and also to be supported by some equity in favor of the husband or those who claim under him." But in Ireland v. Ireland, supra, it was held that, where there is no valid consideration passing to the wife for a release of dower to the husband, she is not estopped from asserting her rights subsequent to the latter's decease.

In Shaw v. Saxman (1917) 46 App. D. C. 526, a case governed by the law of New Jersey, the claim of the plaintiff to a widow's share in an estate was rejected by the trial court, apparently on the ground that the claim was barred by a separation agreement. The reviewing court said: "This agreement was made in New Jersey and is governed by the law of that jurisdiction. There, such an agreement will be countenanced and

enforced 'only in a case which, after a cautious examination of all the circumstances which surround and enter into the agreement, appears to be fair to the wife, and also to be supported by some equity in favor of the husband or those who claim under him.' Ireland v. Ireland, supra. Tested by this rule no court would enforce the agreement in the present case, even though it should be given the interpretation placed upon it by the learned trial justice. Shaw, without cause, had deserted his wife and had assumed meretricious relations with another woman. He was under both a legal and a moral obligation to support his wife and children, and this obligation he recognized in the agreement. But he failed to fulfil his promise, and his wife was compelled to support herself and her children without his aid. The deed referred to in Shaw's letter to his wife formed no part of the consideration for this agreement, because it was executed while the parties were living together, in evident contemplation of the hazards which Shaw was to undergo through his enlistment, and was not even mentioned in the agreement. No court, therefore, would permit either Shaw or those who claim under him to take advantage of such agreement."

e. View in Ohio.

In Hoagland v. Hoagland (1925) 113 Ohio St. 228, 148 N. E. 585, it was held that a husband and wife, in contemplation of an immediate separation, may contract to release their interests in one another's estate. The court said: "We think that the crucial question of construction turns upon the meaning which should be given to the language used in § 8000, General Code, wherein husband and wife are forbidden from altering their legal relations, 'except that they may agree to an immediate separation,' etc. That section is composed of two component parts; it permits husband and wife (a) to alter their legal relations by method of agreement upon immediate separation, and (b) to make an agreement for the support of either and their children during sepa49 A.L.R.-10.

ration. Construing §§ 7999 and 8000, General Code, together, we think it quite apparent that by the former section husband and wife were given comprehensive powers of contract relating to ‘any engagement or transaction with the other;' that by the following section it was the legislative purpose to limit their contractual powers with respect to dower and distributive share, etc. (embodied in the act), to contingencies where they agreed to an immediate separation;' that the language employed in § 8000, General Code, denied husband and wife the privilege of altering their legal relations 'except,' or in case, they might agree to an immediate separation. By the use of the language so employed, there is an implication that such legal relations' could be altered by a contract for an immediate separation; and, conversely, if no separation were contemplated, that then such legal relations could not be altered. That section also provides that, if they do agree to an immediate separation, they may contract as to the support of either of them and their children during separation. Evidently this clause was embodied in the section for the reason that otherwise, under 7997, General Code, the primary obligation of support was placed upon the husband, and measurably upon the wife in case of his inability."

A different view was stated in McGee v. Sigmund (1923) 109 Ohio St. 375, 142 N. E. 676, based on the ground that no persons, whether husband and wife or others, are permitted to contract for the release of a mere expectancy. In Hoagland v. Hoagland, supra, the court, in overruling the McGee Case, said: "The interest of an heir is a naked possibility, a mere expectancy of inheritance. But a spouse has an interest in the property of the other, contingent upon survival, which cannot be devested by will. In addition, dower is an interest that has a present value which cannot be abrogated without consent of the owner. Therein lies the clear distinction between the character of the interest which a spouse may contract to release and that of an ordi