62 Ark. 79 | Ark. | 1896
The questions in this case as stated by
the appellant are: (1) Is the marriage contract void because it was acknowledged before an officer not authorized by the statute to take it? (2) If the contract be valid, should the widow be allowed dower out of the estate acquired by her husband after the marriage? (3) If the contract be not void, and if she be not entitled to dower out of the property obtained after the making of the contract, has she not a right in equity to charge the estate with all sums due her for the rental value of the land mentioned in the contract, which was used and enjoyed by her husband during his life time?
All these questions must be answered in the negative.
1- It is unnecessary for us to discuss the question as to whether the antenuptial contract between Joel E). Bryan and Mary Belle Douglas is or is not void by reason of the acknowledgment having been taken before a notary public, instead of before a court of record, or some judge or clerk of a court of record, as provided in sec. 4899, Sand. & H. Dig. Por, under the curative act of 1885, and the decisions of this court construing such acts, whatever defects there were in the acknowledgment, rendering the deed ineffectual to convey the title, were removed, and the deed was, after such act, as good and valid to carry out the intent of the parties to it as though the acknowledgment had been properly taken in the first instance. Cupp v. Welch, 50 Ark. 294, and authorities cited; Sidway v. Lawson, 58 Ark. 117.
2. The widow cannot have dower out of the estate of her husband acquired after the marriage, for the reason that the antenuptial contract into which she entered deprives her of the right to claim dower. That contract, so far as it is necessary to make clear the point, is: “To have and to hold the said lot and parcel of land as aforesaid as jointure and in lieu and full satisfaction of her whole dower .in his estate. And the said Mary Belle Douglas, being of lawful age, and being well advised, in consideration of the premises, and of one dollar paid her by the said Joel E. Bryan, doth for herself, her heirs, executors and administrators, covenant and agree with him that the said lands so conveyed to her shall be in full satisfaction of her said dower in his estate, and shall bar her from claiming the same, if she shall survive him after the said marriage. And, further, that if the said marriage be had, and she survive him, she will not claim or demand any share of his personal estate under the statutes of distribution, or otherwise.” To construe the above instrument merely as an agreement not to claim dower in the estate of the husband at the time of the marriage, and as not barring dower in property afterwards acquired, would be ignoring the plain meaning of the words employed. “In lieu and full satisfaction of her whole dower” means that she surrenders all claim to dower. The words are too plain to be explained. Besides, the effect of jointure, which this'conveyance is, if accepted, is to bar dower. Sand. & H. Dig., secs. 2528-2531, inclusive; Grogan v. Garrison, 27 Ohio St. 50; Wentworth v. Wentworth, 69 Me. 247; Culberson v. Culberson, 37 Ga. 296; Andrews v. Andrews, 8 Conn. 79; 1 Wash. Real. Prop. pp. 324, 330, sec. 17; Tevis' Ex'rs. v. McCreary, 3 Metc. (Ky.) 151; Vance v. Vance, 21 Me. 364; Perry v. Perryman, 19 Mo. 469; Miller v. Goodwin, 8 Gray (Mass.), 542. See, also, Charles v. Charles, 56 Am. Dec. 155.
3. The wife does not come into possession of the provision made for her by her husband, as jointure, until his death. Jointure is defined to be “a competent livelihood of freehold for the wife of lands and tenements, to take effect in profit and possession presently after the death of the husband, for the life of the wife at least.” 2 Blackst. Com. 137. “One mode of barring the claim of a widow to dower,” says Mr. Washburn, “is by settling upon her an allowance previous to marriage, to be accepted by her in lieu thereof. * * * But in order to have such provision operate as a bar to dower, it must take effect immediately upon the death of the husband.” 1 Wash. Real Prop. ch. 8, sec. 1-6. See, also, authorities cited supra, from appellees’ brief. These authorities show that the appellant is not entitled to rent for the lands conveyed,to her as jointure.
The judgment of the circuit court is affirmed.
