54 How. Pr. 409 | N.Y. Sup. Ct. | 1877
The only subject of real contention in this action which is one in partition is as to whether the defendant Mary Ann Brown shall have dower in so much of
It is quite clear that the execution of this agreement by the defendant Mary Ann Brown, did not, in law, release or discharge her dower in her husband’s lands. That could only
But it is argued in opposition to the claim of the widow, that she accepted, and is in the enjoyment of, a pecuniary provision in lieu of dower, and that she is equitably estopped, by such agreement and the provision in question, from asserting any claim to dower in her husband’s lands. The object of the husband in making the pecuniary provision, by the agreement of 1855, in favor of his wife, was to secure her comfortable support; that she might be maintained with the comforts and conveniences which she had theretofore enjoyed. This was assuredly his duty towards her, and there is nothing disclosed in the case, from which it can in any wise be inferred, that he could not have been compelled to do this had he refused, although they lived apart from each other. It is both a moral and legal duty imposed upon a husband to support his wife, and that with reasonable comforts and conveniences. This is all the argument in question professed to accomplish.
The defendant’s counsel cites no case in support of this view that the widow is equitably estopped from asserting her claim to dower, by reason of the agreement and provision in question. On the other hand, there are cases which discountenance a'ny such conclusion.
Dower is highly regarded in the law. It is a moral as well as a legal right. “ This humane provision of the common law was intended for the sure and competent sustenance of the widow and the better education and nurture of her children (4 Kent's Com., 36 [marg.]). The husband cannot defeat it by any act in the nature of alienation or charge without the
In Crain agt. Cavana (36 Barb., 410) the wife had obtained a divorce in the court of chancery from her husband. Provision was made in the decree for the payment by the husband of a sum of money, to be applied towards the maintenance and support of the complainant and her infant daughter, “ in lieui and satisfaction of all alimony, dower, right of dower, a/nd all other claims which she may or can have to the /property of her husband.” The court, Moboan, J., at general term says: “ The court of chancery had no authority to require a married woman, although a party, to accept a gross sum from her husband in lieu of, and in satisfaction of, her dower. And her release of dower to her husband, although voluntary, and duly acknowledged, and made in pursuance of such decree, would be a nullity, as she is legally incompetent to execute such an instrument to her husband, except in the single case authorized by the act of 1870” (Laws of 1870, p. 128). Courts of equity have properly hesitated from in any manner giving their sanction to separations of husband and wife by voluntary arrangement, such separations being regarded as contrary to the policy of the law, and against morality.
Agreements, however, entered into by the husband, for the payment of a specified sum for the support and maintenance of his wife, have been upheld and enforced. Such is the case of Calkins agt. Long (22 Barb., 97), the reason for the conclusion being stated'in an able opinion by Mason, J. (Wallace agt. Bassett, 41 Barb., 92). But I do not find any instance in which it has been held, that the wife can release to her husband her dower rights, directly or indirectly.
But it is further urged that the case comes within section 12 of title 3, part 1, chapter 1 of the Bevised Statutes. The portion of the statute to which reference is made, is in these words, if “ a pecuniary provision be made for her (the wife) in lieu of dower, she should make her election, whether she will take such pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both.”
It is quite clear that in order to put the wife to such election, the pecuniary provision alluded to must, in some way, by last will or otherwise, be tendered to her at the death of her husband. In Crain agst. Camama (supra), it was held, “ that this equitable provision to bar dower must be a provision to take effect in possession or profit immediately on the death of the husband,” and eases are cited to support this conclusion.
In the ease under consideration the provision was made for the wife more than twenty years ago. The widow is now seventy-one years of age and upwards. And the provision made by the agreement must, in reason and experience, have been already largely exhausted for the support and maintenance of the wife, so that it does not appear that it is a present
The conclusion reached is that there should be judgment for partition of the lands, but that Mary Ann Brown is endowed of the lands in question.