in his favor.

The covenants were mutual, reciprocal, and beneficial to all the parties, and were acted upon by all the parties; and the consideration was solemnly acknowledged. He was relieved during her life from her support. It would be grossly inequitable and unjust, as well as immoral, not to hold him estopped by his deliberate and solemn covenants. Dennison v. Ely (1847) 1 Barb. (N. Y.) 623. Estoppels may always be resorted to as a means to prevent injustice; always as a shield. Pierrepont v. Barnard (1849) 5 Barb. (N. Y.) 375. This is the rule wherever it can be seen that the act, or the covenants, must have had the effect of influencing the conduct of the party setting them up; and especially where the party making the claim has had a consideration, or has induced the other to act upon it."

In Crum v. Sawyer (1890) 132 III. 443, 24 N. E. 956, a surviving husband raised the question of the consideration for his waiver of rights of dower and right as an heir of his wife's estate. The court said: "Said contract was based upon a valuable consideration, and there can be no doubt, we think, that said consideration was adequate. On the part of Mrs. Crum, it consisted of the advancement and payment in money out of her separate estate in satisfaction of her husband's indebtedness, of the sum of $31,992.80, and the relinquishment of her dower and homestead in her husband's lands, and of her distributive share of his personal estate, and her covenant not to claim, demand, or sue for any of the rights thus relinquished in case she should survive her husband. Said consideration, so far as it involved the advancement and payment of said sum of money, was fully executed. ... It is true that one half of the real estate of which she in fact died seised and her personal estate not required for the payment of claims were worth, at the time of her death, much more than the sum of money advanced by her. But this by no means proves that, at the time the contract was executed, the money advanced by Mrs. Crum and

the covenants on her part were not a sufficient and adequate present consideration for the relinquishment of mere possibilities which might never ripen. into vested interests. But the rule is well settled that mere inadequacy of consideration, unaccompanied by other inequitable incidents, unless so gross as to show fraud, is never a sufficient ground for canceling either an . executed or executory contract, or to defeat the specific performance of an executory contract. 2 Pom. Eq. Jur. § 926. Furthermore, the sufficiency of the consideration of the contract in this case is not attacked by any pleading. The bill makes no mention of it, and of course does not attempt to state a case which would entitle the complainant to relief against it. It must then be held that, so far as the validity of said instrument is affected by the question of consideration, it must be held to be valid and binding upon the complainant."

Of course a waiver of a right of homestead of a husband in the property of his wife on her death is not valid, unless it conforms with the statutory requirements for a waiver of homestead rights. Crum v. Sawyer (I.) supra.

In Oregon, where a husband and wife are not permitted to contract with each other as to any estate growing out of the marriage relation, an agreement between a husband and wife for the relinquishment of curtesy in the wife's property is void. McCrary v. Biggers (1905) 46 Or. 465, 114 Am. St. Rep. 882, 81 Pac. 356; Chance v. Weston (1920) 96 Or. 390, 190 Pac. 155. In the case last cited, the court said: "In Oregon neither husband nor wife can contract with the other regarding any estate growing out of the marriage relation, and conveyances between married persons intended to cut off or relinquish such estates as curtesy or dower are entirely void. Jenkins v. Hall (1894) 26 Or. 79, 37 Pac. 62; House v. Fowle (1890) 20 Or. 163, 25 Pac. 376. A contract between a wife and her husband for the elimination by him of his curtesy estate in her property, the right to which is given by § 7315 and

by § 7318, as amended by chapter 331, Laws of 1917, which provides that ‘a married woman may, by will, dispose of any real estate held in her own right, subject to any rights which her husband may have as tenant by the curtesy or his election thereunder,' is held to be entirely void both at law and in equity, as being against the public policy of the state of Oregon."

In McCrary v. Biggers (Or.) supra,. the court said: "As we understand the plaintiff's position, it is that the defendant and his wife entered into an oral contract or agreement at the time the will was executed, by which he agreed to relinquish or surrender his curtesy interest in her property, and that she made her will relying thereon. The gist of this contention is that by such contract or agreement the defendant clothed his wife with power and authority to dispose of her property free from his curtesy interest. Now, it has been held by this court that, when a husband or wife owns property in his or her own right, any inchoate right the other may have therein, such as tenant by the curtesy or by dower, cannot be the subject of a valid contract between them. It was so held in House v. Fowle (Or.) supra, and again in Potter v. Potter (1903) 43 Or. 149, 72 Pac. 702. The contract, therefore, between the defendant and his wife for the relinquishment by him of his curtesy estate or interest in her property, was void, and of course cannot be specifically enforced."

IV. Settlement of property on surviving spouse.

A postnuptial agreement for a settlement of money or other property on the surviving spouse has been held to be valid. Fleischman v. Furgueson (1916) 174 App. Div. 310, 160 N. Y. Supp. 387, reversed on other ground in (1918) 223 N. Y. 235, 119 N. E. 400. See also McCubbin v. Patterson (1860) 16 Md. 179; Stewart v. Todd (1920) 190 iowa, 283, 20 A.L.R. 1272, 173 N. W. 619, 180 N. W. 146.

In Fleischman v. Furgueson (N. Y.) supra, a postnuptial agreement was held to be valid by which each spouse

promised the other that the survivor should have such interest in the estate of the other as accrues in cases of intestacy, the wife's interest, however, to be measured by the laws of Pennsylvania, and the husband's by the laws of New York.

In McCubbin v. Patterson (1860) 16 Md. 179, it appeared that a discharged workman was re-employed on condition that his wages should be held for his wife, or be deposited in a bank for the wife, in order to create a fund for the maintenance of the workman, his wife, and children. Thereafter, on the separation of the husband and wife, both claimed a fund deposited in a bank in accordance with the condition of re-employment. An agreement was made providing for an annual payment from the fund of $75 to each of the parties as long as both were living, and on the death of one spouse for an annual payment of $120 to the survivor for the period of his or her life. The agreement further provided that, on the death of both husband and wife, the balance of the fund should be divided equally between the children of the spouses or their representatives. The husband died, and thereafter his widow died leaving a will in which she attempted to dispose of the fund as her separate estate. The court said: "The agreement adopts the principle of the original arrangement, substituting in lieu of the application of the money arising from the wages, by the wife, to the support of her husband, herself, and their children, the payment of specific sums out of it, to them severally during their joint lives, and of a larger sum to the survivor, and of the balance to their children. Conceding that it is doubtful whether this instrument of writing so bound this married woman as to have precluded her from insisting, upon the death of her husband, that what then remained of this fund should be regarded as a part of his personal estate, in which she was entitled to her distributive share, yet inasmuch as she did not then take that ground, and claim to have it divided between herself and his personal representatives,

in which event they would have had the immediate enjoyment of their respective shares, but preferred, her disability being then entirely removed, to receive annually the sum specified in the agreement to be paid to her, up to the time of her death, as the evidence shows she did, she must, in my opinion, be regarded, in equity, as having waived any supposed rights she might have had as distributee of her husband's personal estate, and as having adopted, as between herself and the distributees, the terms of this written agreement, and as having agreed to be bound thereby."

In an action by a surviving husband for the specific performance of a postnuptial contract (Stewart v. Todd (Iowa) supra), it was held that a husband and wife could make a valid partnership contract, giving to the survivor all the property invested in the partnership business, its earnings, investments of its earnings, and resulting profits. For restrictions in Iowa on the right of a husband and wife to contract with respect to interests in one another's property, see supra, I. b.

Likewise, courts have held to be valid a postnuptial contract by a husband for the payment of money to his wife on his death. Northrop v. Barnum (1836) 15 Wend. (N. Y.) 167; Picket v. Johns (1827) 16 N. C. (1 Dev. Eq.) 123.

Northrop v. Barnum (N. Y.) supra, was an action on a bond given by a husband for the payment to his wife after his death of a sum of money bequeathed to his wife by the will of her father. In holding that the bond was valid, the court said: "It is true that the legacy, being personal property and bequeathed to the wife directly, became the personal property of the husband; he was therefore under no obligation to dispose of it for the benefit of the wife. He had, however, an undoubted right, and in this case it is to be presumed that he considered it his duty, to do so. No objection is raised here by creditors, but by the personal representative. We have the authority of Chief Justice Reeve for saying that if the hus

band, after marriage, receive a portion which came to his wife from some person deceased, and in consideration thereof make a reasonable settlement, it is good. Reeve, Dom. Rel. 178, citing Colvile v. Parker (1607) Cro. Jac. 158, 79 Eng. Reprint, 138. In Brown v. Jones (1744) 1 Atk. 188, 26 Eng. Reprint, 122, it is said by Lord Hardwicke that it is admitted, if a settlement is made before marriage, though without a portion, it would be good, for marriage itself is a consideration; and it is equally good. if made after marriage, provided it be upon payment of money as a portion. That was a contest between creditors of the bankrupt husband on the one side, and the wife and children on the other. This is a contest between the wife herself, in the name of her trustee, and the executor of the husband. If such a settlement is good against creditors, it surely is against the party's representative. I am clearly of opinion that the bond is valid, whether we look into the consideration or not."

The

In Picket v. Johns (N. C.) supra, the court held to be valid a separation agreement, and a bond to secure its performance, whereby a husband contracted to have paid to his wife on his death a sum of money. court said: "I think the contract between Micajah Picket and Kezanah, his wife, in the year 1805, was founded on a good and meritorious consideration. That in point of obligation it is more than equal to settlements made after marriage, because in this case a compensation for the injury he had done her, the continuation of which was contemplated for the rest of his life, viz., in withdrawing his protection from her, and withholding from her anything like a suitable support, formed a consideration in addition to that upon which such settlements are supported. The settlement upon the children was also founded on a meritorious consideration, and the more to be enhanced, as it announced that a father's care was about to be withdrawn from them also." W. S. R.