5 Indian Terr. 219 | Ct. App. Ind. Terr. | 1904
The appellant Emma Daniels filed assignment of errors as follows: “(1) The court erred in its refusal to make findings of fact. (2) The court erred in refusing to make the findings of fact asked for by appellant. (3) The court erred in refusing to hold that the adultery complained of barred applicant’s right to dower in the property of deceased. (4) The court erred in refusing to consider the contracts in evidence. (5) The court erred in allowing the applicant dower. (6) The court erred in refusing a new trial.”
Appellant contends, under her first assignment of error, that under section 5149, Mansf. Dig. (section 3354, Ind. Ter. St.
The third assignment of error was the refusal of the court “to hold that the adultery complained of barred applicant's right to dower in the property of the deceased.” The adultery of the applicant, Ellen Taylor, wife of deceased, is conceded; but there was no divorce from the deceased, though they had lived separate and apart from each other for several years. After the death of the husband, the applicant, Ellen Taylor, having been appointed administratrix of her husband's estate, filed her petition for allowances under the statute, as a widow, and subsequently her petition for allowance of dower. To these applications the appellant, Emma Daniels, one of the heirs, and daughter of deceased, files objections. The question under this assignment is, then, does adultery bar dower? It is conceded that at common
The fourth, fifth, and sixth assignments are considered together by appellant, and it seems to be well settled in Arkansas that a release of dower in real estate by a wife to a husband is a nullity. In Bowers vs Hutchinson (Ark.) 53 S. W. 401, 402, the court said: “The deed which constituted the defense in this action was without effect as a relinquishment of dower in real estate. The statutes of this state provide that a widow shall have dower in ‘all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.’ To relinquish her dower in any land of her husband the statutes require her to join in the conveyance thereof, and to voluntarily appear before a proper court or officer, and, in the absence of her husband, declare that she had, of her own free will, signed the relinquishment of dower for the purposes contained and set
The agreement for separation and release of dower in this case is as follows.
“Saline District, August 5th, 1887. .This is to certify that we, George W. Taylor and Ellen Taylor, his wife, have this day agreed to dissolve our privileges and rights together as man and wife on the following terms and conditions:
*229 “1. I, George W. Taylor, agree to the terms as follows: I agree to separate myself from wife and not assail her fair name and give her a divorce, but I must have my individual property and part the care and keeping of my child and the privilege of schooling the child, and further, I must not be barred of my rights as a citizen, as I will then be able to take care of my child and do for it in its own country.
“2nd. As to the conditions of my agreeing to separate myself from her I am willing to live with her and take care of her and her children, but while she is not satisfied with me I go into this dissolution to satisfy Mrs. Taylor and agree to be forever satisfied.
“3rd. I, EllenTaylor, wife of the said George W. Taylor, agree to the terms asked by Mr. Taylor and I agree to give him his own property and part of the care and keeping of the child, also the schooling, and further, to allow him a divorce at any time and not put any plea against his right as a citizen and I must have all my own property.
“4th. As to condition I agree that I am not willing to live with Mr. Taylor on the ground I am not satisfied with him as a husband and in signing this I forever debar him of any privileges with me or at my house as his wife again.
(“Signed) G. W. Taylor.
“Ellen Taylor.
^ “Witness: W. W. Dudley, C. McRidge.”
“Know all men by these presents that I, Ellen-Taylor, wife of George W. Taylor, have this day relinquished to the said George W. Taylor any and all dower right in trust or claim I*230 might have as his wife to his place Known as the Downing improvement and all his own stock, etc. etc., of his own individua property, and I hereby in these presents relinquish myself from him and all claims against him and his. Done this August 5th, 1887.
“(Signed) Ellen Taylor.
“Witnesses: (Signed) W. W. Dudley, C. McRidge.”
Agreements for separation are sustained by the courts almost universally, but they must be fair and reasonable, and based upon sufficient consideration. What consideration supports the above agreements? What does the husband agree to do for the maintenance of the wife? Absolutely nothing, except to remove himself and his property away; and he stipulates that he shall not lose his citizenship by reason of leaving her. We have found no case upholding an agreement where there is absolutely no provision for the wife's maintenance, or for division of propertj" or contribution to her, as much as shall be just, considering the condition of the husband’s property interests. We hold the contracts void for want of any consideration to support them. The appellee has taken a cross-appeal from the decision of the court refusing the allowances provided by statute. But upon what authority the court acted, we.are not advised. None has been cited in the briefs, and there is no limitation in the statute itself. The judgment of the court will be modified, granting the statutory allowances, and the case will be remanded to the probate court, with directions to proceed with the same in accordance with this decision.
Modified and remanded.