nary heir. Under the statutes of our state, the law gives to the surviving consort a definite portion of the intestate's property, both real and personal. This right, whether to dower or distributive share, in case of survival, cannot be defeated by any will. Doyle v. Doyle (1893) 50 Ohio St. 330, 34 N. E. 166. . Unlike the case

of an ordinary heir, there is in the execution of contracts of this character between husband and wife both consideration and mutuality therefor. For this reason the rule denying efficacy to the release by an heir should not be applied where these releases are entered into between husband and wife. In that respect the Needles Case (1857) 7 Ohio St. 432, 70 Am. Dec. 85, is distinguished from the case at bar. The principle broadly announced in the syllabus in McGee v. Sigmund, supra, is not adhered to by this court, and is therefore overruled."

In Du Bois v. Coen (1919) 100 Ohio St. 17, 125 N. E. 121, suit was brought on one of a series of notes which were executed by a husband to his wife in conformity with a contract providing for the notes and for a mutual release of all claims of dower, distributive share, or statutory allowance in one another's estate. The contract was made while the parties were living together, and, it seems, was not made in view of an immediate separation. In denying the right of the wife to recover on the note, the court said: "Whether § 7999, General Code, is broad enough to grant to cohabiting persons the power to make these mutual releases during coverture, may be doubtful. However, we are constrained to the view that the right of contract given to the husband and wife under the section named has been limited by legislation relating to husband and wife found in other sections of the Code. One of these limitations is contained in § 8000, General Code, which reads as follows: 'A husband and wife cannot by any contract with each other alter their legal relations, except that they may agree to an immediate separation, and make provisions for the support of either of them and their children during the

mutual release by husband and wife in the property of the other after decease is an alteration of their legal relations. As stated before, dower and distributive share were brought within the scope of the act controlling the relations of husband and wife. These provisions were incidental to their marital relation, and were legal in their character. It was the undoubted policy of the legislature, by the adoption of this section, not only to preserve the unity of the marital relation, but to preserve intact the property provisions which were made for one after the decease of the other. If the legislature had intended merely to limit their right of contract respecting their marital relations, it would have used the term 'marital;' but having incorporated within the act the term 'legal,' which here embraces more than 'marital,' it would seem that the legislature intended that there should be no alteration either of marital or property relations in the nature of expectancies, except in case of immediate separation. The ingrafting of the exception permitting such contracts to be made upon immediate separation plainly evinces the legislative policy of denying to a husband and wife living together the right of absolute contract with reference to their expectancies in each other's estate. It was not intended as an authorization to traffic in property of this character, thereby disturbing domestic felicity and the peaceful conjugal relations naturally existing between husband and wife living togeth. Whether the husband and wife's act would permit such a contract to be made in a case where separation occurs, we do not now decide, as that situation does not present itself in this case."

er.

In Spangler v. Dukes (1884) 39 Ohio St. 642, the material facts and the decision of the court were stated as follows: "From the findings of fact it is clear: (1st) That John Dukes in November, 1872, intended to make a full disposition of all his estate without leaving a will; (2d) that, in part execution of that intention, he,

through a trustee, executed and delivered a deed in fee of the land in controversy to his wife as a suitable provision for her, in full for all her claims as widow against his estate, in consideration that she would relinquish all claims as dower or otherwise against the same; and (3d) that such. provision was reasonable, and was accepted by her in lieu of all claims against her husband's estate. This was in legal effect a jointure, settled on her during coverture, which vested in her the estate in fee. From this state of facts it is clear that, by the delivery of the deeds, the legal estate vested in her-it was not devested by destroying the deeds, even with her consent; and that at her husband's death she might elect to waive her jointure and be endowed under the statute (Rev. Stat. § 4189). That it would be inequitable to allow the widow to claim both jointure and dower, when the former is a reasonable provision for her, in lieu of the latter. That as her claim to dower was made after the commencement of this action to quiet her title to the jointure, and while her right to this land was in grave doubt, and before she was fully advised in the premises, she should not be thereby estopped from her election under § 4189 of the Revised Statutes. But, if she now elects to prosecute this action to establish her jointure, she must restore to the estate the amount already received as dower in the lands sold, and release her claim to dower in the unsold lands. Something has been said as to her returning, also, the amount she has received as widow for her year's support. Under Collier v. Collier (1854) 3 Ohio St. 369, she is entitled to this allowance notwithstanding this provision was in full of all claims against said estate."

II. Release by wife to third person. As a general rule a married woman may enter into a valid agreement with her husband to release her dower to third person and stipulate for an equivalent in consideration of her so doing. Hoot v. Sorrel (1847) 11 Ala. 386; Slatter v. Meek (1860) 35 Ala.

528; Hollowell v. Simonson (1863) 21 Ind. 398; Higgins v. Ormsby (1901) 156 Ind. 82, 59 N. E. 321; Garlick v. Strong (1832) 3 Paige (N. Y.) 440; Smith v. Oglesby (1890) 33 S. C. 197, 11 S. E. 687; Burwell v. Lumsden (1874) 24 Gratt. (Va.) 443, 18 Am. Rep. 648; Taylor v. Moore (1824) 2 Rand. (Va.) 563.

Thus in Hoot v. Sorrell (Ala.) supra, it appeared that a married woman had refused to relinquish her right to dower in certain lands which her husband sold to a third person unless certain property was settled on her, so as to invest her with a separate estate free from liability for her husband's debts, and, in consideration of her release the husband transferred to her certain slaves and other property. Subsequently, creditors of the husband attempted to subject the property so transferred to the payment of several judgments rendered against the husband, on the ground that the transfer was without sufficient consideration. In denying their right so to do, the court said: "The right of dower depending upon the wife surviving her husband is regarded as valuable, and protected not only by the common, but by the statute, law; and it depends upon her own volition whether she will yield it up or not. She may gratuitously renounce it in favor of her husband, or may require something to be paid. for it, or property to be settled and conveyed to her separate use, as an inducement to her relinquishment.

. That the relinquishment of the wife's contingent right of dower in the lands of her husband is a sufficient consideration for a settlement has not been controverted, and we think cannot be successfully gainsaid." And in Hollowell v. Simonson (1863) 21 Ind. 398, the court said: "We understand it to be well settled, upon ample authority, that a relinquishment of dower by the wife, the husband being then alive, is a good and valuable consideration for a conveyance by the husband, or procured by him, to the wife, of property which may be considered but a fair equivalent; and that the same will be viewed

as valid or not, as it may be shown to be fair or fraudulent, and the comparative value of the respective estates and interests may be taken into consideration."

In Garlick v. Strong (1832) 3 Paige (N. Y.) 440, it was held that a wife's relinquishment of a right of dower in land was a sufficient consideration to support an agreement by the husband that she should receive as her separate property a part of the purchase price of the land.

However, in Iowa, under a statute providing in effect that a husband or wife has no interest in the property of the other resulting from the marriage relation, which can be made the subject of contract between them, an agreement by a wife with her husband that for a certain consideration she will join him in a conveyance of his land to a third party is invalid and unenforceable. Miller v. Miller (1897) 104 Iowa, 186, 73 N. W. 484; Garner v. Fry (1898) 104 Iowa, 515, 73 N. W. 1079. In the case last cited the court said: "While the statutes of this state confer on married women the largest freedom in contracting, they stop short of that interest in the husband's property with which the wife is endowed for the protection and well-being of the family. She cannot convey it, as a separate and independent interest, to a third party.

. Nor can she convey it to her husband. The inchoate dower interest may be released, but not bargained and sold. . . . The statute is not limited to conveyances, but is extended to all contracts. 'When property is owned by either the husband or wife the other has no interest therein which can be subject of contract between them. . . Code, § 3154. This evidently refers to the interest arising from the marriage relation, such as dower or homestead, and not that derived from some other source. . . . It is the policy of the law to foster and protect family unity and harmony, and for this purpose the contingent interest of the husband or wife in the other's property is created, though not such as may, in any event, become the subject of

In

barter and sale between them. all their dealings each must treat the property of the other as his own, and never pervert the inchoate interest therein as a means of private gain. Either may elect whether he will join in a conveyance, but is precluded from using the right for the purposes of speculation or oppression. The statute is intended to serve the double purpose of shielding the contingent rights of the one against the fraud or imposition of the other, and guarding against the possibility of selfish calculation and unjust exactions and interferences of the one in the management and control of the other's estate."

III. Release by husband.

Although there is authority supporting the opposite view, a number of cases uphold the validity of a contract by a husband to release his interest in the property of his wife on her death. Crum v. Sawyer (1890) 132 Ill. 443, 24 N. E. 956; Luttrell v. Boggs (1897) 168 Ill. 361, 48 N. E. 171; King v. Mollohan (1900) 61 Kan. 683, 60 Pac. 731, 61 Pac. 685; Eberhart v. Rath (1913) 89 Kan. 328, 131 Pac. 604, Ann. Cas. 1915A, 268; Bradley v. Burgess (1921) 109 Kan. 347, 198 Pac. 967; Re Lauderback (1921) 106 Neb. 461, 184 N. W. 128. See McBreen v. McBreen (1900) 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463, and Grout v. Van Schoonhoven (1844) 1 Sandf. Ch. (N. Y.) 336. See also Wallace v. Bassett (1863) 41 Barb. (N. Y.) 92.

In denying the right of a husband to an assignment of dower in certain lands of which his wife was seised at her death, the court said in Luttrell v. Boggs (1897) 168 Ill. 361, 48 N. E. 171: "Coming now to the contract in question, in Crum v. Sawyer (Ill.) supra, where a contract had been entered into between a husband and wife wherein the husband had released his contingent interest in his wife's lands, it was held that a husband may, for a valuable and adequate consideration, enter into a contract with his wife to release and relinquish all his right and interest of

every kind and nature, including his contingent right of dower, in all her lands, and his interest as heir in her lands and personal estate, and that such a contract, if fairly made, will be binding on him. This case was followed by Heisen v. Heisen (1893) 145 Ill. 658, 21 L.R.A. 434, 34 N. E. 597.

. The case under consideration cannot be distinguished from the two cases cited, and in principle it must be controlled by those cases. By the contract Mary A. Luttrell released to complainant all her interest, right, and title to all real estate and personal property, of whatever kind, possessed by him at the time of the marriage. In consideration of this agreement on her part, the complainant released unto her, Mary A. Luttrell, all his interest, right, and title to any and all real estate or personal property owned or possessed by her at the time of the marriage. The agreement upon the part of complainant was predicated upon a valid consideration, and, as he had full power to make the contract, no reason is perceived why it should not be enforced and he be compelled to abide by it."

A husband may, by a postnuptial contract, waive his rights as heir in the estate of his wife as well as his right of dower in her estate. Crum v. Sawyer (Ill.) supra, wherein the court said: "This court has repeatedly held that estates in expectancy, though contingent, are proper subjects of contract, and therefore that assignments by expectant heirs of their future contingent estates, when made fairly and upon valuable considerations, though inoperative at law, will be enforced in equity as executory agreements to convey. Parsons v. Ely (1867) 45 III. 232; Bishop v. Davenport (1871) 58 Ill. 105; Galbraith v. McLain (1877) 84 Ill. 379; Kershaw v. Kershaw (1882) 102 III. 307; Simpson v. Simpson (1885) 114 Ill. 603, 4 N. E. 137, 7 N. E. 287. There can be no question, then, that the complainant's contingent interest or expectancy as the heir of his wife, in her real and personal estate, was a proper subject of contract, and the contract in question having been made upon a valu

able consideration, by parties capable of contracting with each other, and, so far as the evidence shows, with entire fairness, it should, as to such contingent interest or expectancy, be enforced according to its terms."

In King v. Mollohan (1900) 61 Kan. 683, 60 Pac. 731, 61 Pac. 685, the court upheld the validity of a contract whereby a husband, in consideration of $3,900 paid to him by his wife, released her and her estate from any claims which he had in her property as her husband, authorized her to dispose of her property free from any claims, immediate or contingent, which he had in it, and stipulated that he would never claim any of the property which she then had or might thereafter acquire.

Lauderback

In the case of Re (1921) 106 Neb. 461, 184 N. W. 128, a separation agreement by which a husband released all right of inheritance in the property of his wife was held to be binding on him. The court said: "The position that where husband and wife find it impossible to dwell together in harmony, because of the misconduct of one which would warrant a legal separation, decide to enter into a contract adjusting all the property rights, and each relinquish any rights in the property of the other, and providing for the immediate separation of the parties, is valid and will be enforced, is supported by the great weight of modern authorities, and is in consonance with reason and justice. There is nothing in the record in this case to indicate that the contract of settlement and for separation was unfair or inequitable; the parties having freely entered into the same and lived up to it until the death of one of the parties, there appears to be no good reason for not enforcing the same."

In McBreen v. McBreen (1900) 154 Mo. 323, 77 Am. St. Rep. 758, 55 S. W. 463, the plaintiff brought an action of ejectment based on his right of curtesy in the land of his former wife. The answer averred a separation agreement, by which the wife released her right of dower, and each party

agreed to absolve the other from all obligations by reason of their relation as husband and wife. With respect to the agreement the court said: "That such a contract as the one between plaintiff and his wife, Ann McBreen, is not enforceable at law, is too well settled for discussion, but it does not for that reason follow that it may not be successfully interposed as an equitable defense to an action brought, as in the case in hand, in disregard of its terms and conditions. The contract between the plaintiff and his wife recites that 'finding it impossible to live together in peace and harmony, and deeming it to their mutual interest to separate, and live separate and apart, and it being mutually desirous to settle all matters of property between them, etc.

And it is further mutually agreed that, upon the performance of this agreement, the said parties hereto shall be absolved from any and all obligations toward each other by reason of their relation as husband and wife, and the said parties hereto hereby release each other from any and all obligations by reason thereof.' The parties complied literally with the terms of the contract, plaintiff's wife, Ann, joining with her husband in the deeds to the property which he thereafter conveyed away, and relinquished her dower in all the real property which he owned at the execution of the contract. The covenants in the agreement were for the mutual benefit of both parties, and were acted upon by them. Ever after the execution of the agreement the parties lived apart, and the plaintiff was relieved of his wife's support, and upon no principle of equity or good conscience should he now be permitted to have possession of the property as tenant by the curtesy, which she afterwards acquired with her own means, although it was not her equitable separate estate. By the terms of his own deliberate and solemn covenants he should be estopped, for otherwise it would be the grossest injustice, to prevent which the doctrine of estoppel may be invoked. Wallace v. Bassett (1863) 41 Barb. (N. Y.) 92. It would be hard

to find a case in which the claim of property is so inconsistent with honesty and fair dealing, as is the plaintiff's in this,-and if the doctrine of equitable estoppel should be applied in any case it should in this."

In Grout V. Van Schoonhoven (1844) 1 Sandf. Ch. (N. Y.) 336, a trust deed was held valid whereby a husband conveyed to trustees his life estate as tenant by the curtesy initiate, the income to be applied to the support of his wife's issue.

In Wallace v. Bassett (N. Y.) supra, the plaintiff's action was based on a statutory provision for a life estate to the surviving spouse in one third of the real estate of which the other spouse was seised at the time of death. In holding that he was barred from claiming the benefit of this provision, the court said: "I am also of opinion that the plaintiff is estopped from bringing this action by his covenants in the deed of separation. He covenanted with her that he would not claim or demand any property which she should thereafter own, or that she might otherwise acquire. The property in question she did afterwards acquire, and did own, and it is now settled that deeds of present separation are valid, so far as relates to the trusts and covenants by which the husband makes provision for the wife, and the indemnity given to the husband by the trustees. 2 Bright, Husband & Wife, 313; Rodney v. Chambers (1802) 2 East, 293, 102 Eng. Reprint, 380. The covenants were mutual and dependent. The trustees, in her behalf, in consideration of property granted and to be granted for her support by the plaintiff, as well as his covenant to claim no property which she might thereafter own or acquire, covenanted on their part to indemnify him against her future support and future alimony. The plaintiff's covenants were for her benefit, as well as for the benefit of her trustees. Her covenants, and the covenants of the trustees, were for the plaintiff's benefit. Upon this consideration the plaintiff enjoyed the benefit during her life of all the covenants made by her and her trustees