12 Del. 102 | Del. Super. Ct. | 1884
Lead Opinion
The first question to be settled is, as to the nature of the Orphans’ Court. The defence made in this case is not a legal one, but purely equitable—assuming it to be a defence to the widow’s petition. Of course, it is no defence at law, and a court of law would not notice it; but the counsel for the devisees not only claim it to be a good bar in equity, but also that the Orphans’ Court is a Court of Equity and can give effect to it. Both these contentions are opposed by the petitioner. The question of jurisdiction, being thus raised, must be first settled. If this court should decide adversely to the claim of jurisdiction, there is an end of the appeal, whatever opinion may be held of the nature and quality of the alleged bar.
This decision not being absolutely binding on this court, although entitled to the utmost respect as coming from one so able and learned as the late Chancellor was, and no provision, constitutional or statutory, being pointed out by him for his decision which appears to authorize its comprehensive language, it is proper that we should ascertain what is the true nature and scope of the jurisdiction of the Orphans’ Court. It is one thing, it is conceived, for a court to have certain equitable jurisdiction, and quite another to be a Court of Equity with respect to it. The distinction may appear to be subtle; but it is not, as will be found hereafter.
It is a well established principle of the law, that special jurisdictions are to be regarded strictly, and the acts creating them are not to be liberally construed. Though it may be the part of a Judge, having general cognizance, using the old maxim, ampliare jurisdictionem, yet no such liberty will be given to a special Court. We have many examples in our reports where the general doctrine I have announced has been recognized and acted upon. There is, in fact, no law anywhere to the contrary. What, then, is the jurisdiction of the Orphans’ Court? To determine this requires a retrospect into the history of the establishment of courts in this locality, and the powers assigned them.
Upon the restoration to the English of the places that had been captured from them by the Dutch in the Avar ended by the treaty of Westminster of the 9th of February, 1674, the Duke of York resumed possession of his grant from his brother King Charles II—of which New York and its dependency, the Delaware Colony, formed a part—and thereupon by his Governor, Sir
“ 2. That there be three courts held in the several parts of the river and bay, as formerly, to wit, one at Hew Castle, one above at Uplands, and another below at Whorkil.
3. That the said courts consist of Justices of the Peace whereof three to make a quorum, and to have the power of a Court of Sessions without appeal, in which court the oldest Juctice to preside, unless otherwise agreed among themselves; above twenty pounds and for crime extending to life, limbo, or banishment, to admit appeal to the Court of Assizes.
4. That all small matters under the value oí five pounds may be determined by the court without a jury unless desired by the parties, as also matters of equity.” Page 456.
The Court of Assizes, by the Duke’s laws, was to be held in New York once a year on the last Thursday of September. Page 11.
By one of the Duke’s laws it is provided as follows (page 44): “ That all persons who now have or shall have any estate of goods, chattels, or lands in their possession belonging to any that are under age, shall exhibit an inventory and accounts of that said estate within three months next after publication of this law to the respective Court of Sessions where such estate shall be, and after-wards yearly; and in case such person or persons who have such estate in their hands do not at the time and place aforesaid present the inventory of such estates as aforesaid, then the whole business to the next Court of Assizes where the offender shall be fined for neglect of duty as aforesaid,” etc. Here is the first statutory provision with respect to the estates of orphans, and relates to the duties of executors and administrators. There was, before, given to the Court of Sessions, as above stated, equity jurisdiction generally : here is a special jurisdiction but it is one rather ecclesiastical as belonging in England to the ordinary, than equitable as pertaining to a Court of Equity. But it is not legal.
When Penn took possession of his grants from Charles II and the Duke of York, and set up his government over his Province
“ Be it enacted, &c., That the Justices of each respective county Court shall sit twice every year to inspect and take care of the estates, usage and employment of orphans, which shall be called the Orphans’ Court, and sit the first third day of the week in the first and eighth month yearly (March and October), that care may be taken for those that are not able to take care for themselves.” Duke of York’s. Laws, p. 131. This is the first legal provision for a distinct session of Court for Orphans’ benefit, and is the origin of the tribunal of Orphans’ Court, now a constitutional body.
In Chapter 156 of the “ Laws made at an assembly held at New Castle the 10th day of the 3d month (May), 1684,” is to be found the following: “ That monthly and quarterly sessions be held in every county in this Province and territories by the respective Justices, and that each Quarter Sessions be as well a Court of Equity as of Law, concerning any judgment given in cases by law capable of trial in the respective County Sessions and Courts. By this it appears, not that the sessions were to be Courts of Equity, but only that in cases by law capable of trial in them, they should have equity jurisdiction also, with respect to such cases. This is very intelligible; it made those Courts equity as well as common law tribunals as to all matters within their common law jurisdiction. Id. 167.
By the 158th chapter there was provision made for a Court of Appeals, and for circuit duty. Id. 168.
By the 42d section of the Petition of Right addressed by the freemen of Pennsylvania and the counties to Benjamin Fletcher, Governor, it is provided, as follows: “ That the Justices of the respective county court (Court of Session) shall sit twice every year to inspect and take care of the estates, usage and employment of orphans, &c., the same as in Penn’s “ Great Law,” above quoted. Id, 205.
This enactment established equity jurisdiction in the Sessions Court, or County Court, under ten pounds. Id. 225.
In 1701 the separation took place between the Province and the Three Lower Counties, and thenceforth there were distinct legislative bodies. But before that event an act was passed entitled, “An act for establishing Courts of Judicature in this Province and Counties annexed,” by the first section of which it was directed that there should “ be holden and kept a County Court of Sessions ” four times a year in each of the counties of Philadelphia, Bucks and Chester (the three upper counties) and in New Castle, Kent and Sussex (the three lower counties) four times each year on certain days mentioned in May, August, November and February, and that there should be a competent number of Justices in every of the said counties appointed by the Governor,” Ac., three of whom should be a quorum, and were thereby impowered to exercise criminal jurisdiction and “shall award process, call special court, hold pleas, and hear and determine all actions, suits and causes, civil, criminal, real and mixed, observing as near as may be respecting the infancy of this government and capacities- of the people, the methods and practice of the King’s Court of Common Pleas in England,” &c. In the clause next but one following it is enacted—“ further, that the said Justices in the respective County Courts shall have full power and are hereby impowered and authorized to hear and determine all such matters and causes of equity as shall come before them in the said courts, wherein the proceed
By the next section a Provincial Court, to consist of five Judges, was established, to sit twice a year in Philadelphia, at least two of the five Judges of which were to go circuit into the counties and hold a court twice in each year on certain fixed days for each county. These courts had jurisdiction of capital felonies (which the County Courts had not) and also apellate jurisdiction from the latter. Notice of the appeals however was to be given by the clerk to the Governor, who was to notify the Judges. Page 113. The Governor also upon application of a party—who had ground to move in arrest of judgment, but did not do it in time—had power to issue a writ of error, &c. The notice to be given by the Governor in case's of appeals, to the Judges (who were to hear them) is probably all that is meant by the expression quoted by Chancellor Ridgely from the 8th Section of the act for establishing Orphans’ Court, Yol. 1, D. L., p. 92, or it may be explained by some supposed sovereign power of equity in Governors, as Sir William Keith, Governor from 1717 to 1726 once announced his purpose to hold with the assistance of his council a Court of Chancery for the Province upon a complaint' made that Courts of Chancery or Equity bad been too seldom held therein. Duke of York’s Laws, 386.
On page 317 of this volume, it is provided that for the better regulating the Orphans’ Court of this government, it is hereby enacted, “ That the Justices of the respective County Courts, or a quorum of them, calling to their assistance the Register General, or his deputy for the time being, in each county-of this Province and Territories, shall have full power and are hereby impowered to hold and keep the said Orphan’s Courts, after the business of the County Court in spring and fall is over, or as often as they shall see occasion, in the same places where the respective County Courts are held from time to time; with full power to award process and cause to come before them all and every such person and persons as are or shall be intrusted with, or in any ways accountable for, any lands, tenements, goods, chattels, or estate belonging or which shall belong to any orphan or persons, under age, either as guardians, tutors, trustees, executors and administrators, and cause
After the separation between the Province and “ Lower Counties,” an act was passed entitled “An Act for establishing Orphans Courts.” The date is not given; but it was somewhere between 1721 and 1726. After referring in the preamble to the fact that several important matters are directed to be done by the Orphans’ Court, but that upon perusal of the law directing the doing thereof the same appears to be very deficient, and divers orphans, and persons concerned for them, or entrusted with their estates, labor under great inconveniences, the act provides that the Justices of the Court of General Quarter Sessions of the Peace in each county of this Government, or so many of them as are or shall be, from time to time enabled to hold those Courts, shall have full power and are hereby impowered in the same week that they are or shall be directed to hold the same Courts, or at such other times as they shall see occasion, to hold and keep a Court of Record in each of the said counties, which shall be styled The "Orphans’ Court; and ■to award process and cause to come before them all and every such person and persons who as guardians, trustees, tutors, executors, administrators, or otherwise are or shall be entrusted with or anywise accountable for any lands, tenements, goods chattels or estate belonging, or which shall belong to any orphans, or any persons under age, and cause them to make and exhibit within a reasonable time true and perfect inventories and accounts of the said estates, and to cause and oblige the Register, or such person or persons as for the time being shall have the probate of wills and granting letters of administration in this Government, or deputies upon application made in that behalf, to bring or transmit into the Orprans’ Court true copies, or duplicates of all such bonds, inventories, accounts, actings and proceedings whatsoever, now or hereafter being or remaining in the respective offices or elsewhere within the limits of their authority, as do or shall concern or relate to the said
The object of this act appears to, have been to establish the Orphans’ Court as a distinct tribunal unconnected with the County Court, though having the same judges, and also to more correctly define its jurisdiction, as well as enlarge it so that it should embrace every subject affecting the interest of orphans or minors. The 7th section gives the judges power to issue attachments for contempt, and force obedience to “ their warrants, sentence or orders concerning any matter or things cognizable in the same courts by imprisonment of body, or sequestration of lands or goods as fully as any Court of Equity may or can do.” Then comes the section referred to by’ Chancellor Ridgely in Farrow v. Farrow. “ Sec. 8. Provided always that if any person or persons shall be aggrieved with any definitive sentence on judgment of the said Orphans’ Court, it shall be lawful for them to appeal from the same to the Governor for the time being, in equity, which appeal, upon security given as is usual in such cases, shall be granted accordingly.”
With these different provisions of law and constitution as our only guide to go by, we are called upon to give our opinion whether the Orphans’ Court is a Court of Equity.
It will be seen, at once, upon reviewing the several provisions of law to which I have referred, or quoted, and they are all that bear upon the question, that the Orphans’ Court can only be considered a Court of Equity in a very restricted and modified sense. It is certainly true that, at the time Farrow v. Farrow was decided, the acts to be performed by the Court were of an equitable nature* and the proceedings and jurisdiction were such as pertained to a Court of Equity: but that did not make it a Court of Equity in the full sense of that term, but only gave it a “ limited statutable jurisdiction” (using language of Judge Story) to be exercised, not by virtue of the court’s inherent powers (for it had none) but as designated by statutory provision. In the beginning there was no distinct court, but the Justices of the Superior Courts or County Courts were to perform certain offices or duties with respect to the estate of minors. When the Courts of Common Pleas were created, these functions were transferred to the Judges of those courts whose sessions were to be in the same week as those of the Pleas Courts. Then the Court came to be held by the Chancellor by the
It may be conceded to be true that all the Orphans’ Court jurisdiction is of an equitable character, and that its modes of proceeding are in the main, similar to those used in equity; and yet that will not make it, what it must be to try the plea in this case, a Court of Equity. Sub modo it is such a court; but it cannot entertain a bill for relief, or discovery as a Court of Equity can. By the old statutes it could call before the Justices, executors, administrators, guardians and others who had properly of orphans in their hands, and make them exhibit inventories accounts, &c., and bind out minors to apprenticeships, invest their money, &c., but though this was equity jurisdiction to some extent, it was all to be done secundum formam statute. It had no other power than the statute gave. The establishment of Registers’ Courts, and the jurisdiction they were endowed with, took away the control over executors and administrators to a great extent—a power, as has been before suggested, rather ecclesiastical than equitable. As evidence that the Orphans’ Courts were not Equity Courts, but only Statutory Courts with jurisdiction of very limited equity subjects, and without any general power of relief even in them, I refer to the first section above in part quoted of the act, above mentioned, for establishing Orphans’ Courts (Vol. 1, Del. Laws, 87) wherein it is provided that if upon hearing and examination thereof (that is, of the proceedings of those having to do with minors’ property) it appears to the Justices that the minors’ interest has been prejudiced by their misbehavior, the Justices are to certify the fact, which would be good evidence “ for the party grieved to recover his damages at the common law.” Why such a provision, if the Orphans’ Court was a Court of Equity? A Court of Equity having taken jurisdiction of such a case for relief, would give it without sending the minor to the common law for recovery of damages for breach of the official bond. Looking at the question before us in every light that shines upon it for my vision, I cannot view the court as a Court of Equity like the Court of Chancery is even for or with respect to the subjects of its own jurisdiction; but simply as a court created by statute and invested with a small portion of equity jurisdiction, or rather with limited
. The jurisdiction of this Court to divide land among the parties entitled, is a legal as well as equitable jurisdiction, and was so when the first act was passed creating Orphans’ Court jurisdiction; and when the dower act of 1816 was passed (that under which the petition in' this case was filed) no jurisdiction of an equitable nature, in dower, was given to the Court, but only the power to lay it off by such machinery as it employed in cases of intestate estates. No express power is given to the Court to try any defence made to the widow’s petition; that held to result from the language of the act, cannot, by any reasoning satisfactory to me which I have yet heard, be taken to invest a Court of the limited scope I have pointed out the Orphans’ Court to be by the laws of its creation, with power to entertain and pass upon a defence so peculiar as that set up in this case, but denied to be valid anywhere; one which certainly depends for its allowance upon an equity only expressly asserted in the single case of Livingstone v. Livingstone, brought before us by the counsel for the devisees.
As illustrative of the defective nature of the equity powers of the Orphans’ Court, I would call attention to what I may treat as a fact—that if a widow petitioning for dower under the act of 1816 had to rely upon discovery through the defendant of her husband’s title to the lands out of which she claimed her dower, she could get no discovery through the Court’s power, but would have to resort to the Court of Chancery for the exercise of the necessary equity power in the premises. Why should this be if the Orphans’ Court is a Court of Equity adequate for the trial of dower cases, where equitable relief is needed in the support of petitions for assignment ?
The provision of the act of 1816 giving the Orphans’ Court power to lay off a widows’s dower in all cases (contemplated by the statute) when she is entitled to it, which Chancellor Ridgely considered an argument in favor of the equity character of the court, I do not regard as meaning anything more than that where there is no valid legal defence, the court may issue its order of assignment as in cases of intestacy.
There is still another view of this question to be considered. It cannot be disputed that the Orphans’ Court is no Court of Equity to give a party any equitable relief, as has been before said, it could not entertain a bill by a widow for discovery to enable her, in that court or in a Court of Law, to establish her legal right—her right of dower being a purely legal one. What then can the Orphans’ Court do when she presents her petition in it to have her dower assigned ? She asks no aid of an equitable nature, but only the issuance of an order of assignment, which the law says she may have upon her application. Is this asking any aid of an equitable nature from an Equity Court? This is a crucial question. Certainly it is not: for the court has no inherent equitable power to grant it, and none of any kind not given by the act of 1816. She, therefore, in no sense calls for help from a Court of Equity to establish her title to dower (which could be withheld or granted on condition of doing equity), but only that it may, as the law directs, put in force the same machinery in her case for the assignment of her dower, which it employs every term in the case of widows of intestates. As this is legal machinery—that is created by statute law, and not having any essence or element of equity in it—no bar to its issuance can be allowed in the Orphans’ Court, which has no power to give her equitable aid if she should seek it.
For the above reasons my opinion is that the decision made in
Concurrence Opinion
concurring:
Before the statute of 27 Henry 8, c. 10, commonly called the statute of uses, no jointure settled on a wife, either before or after marriage, could bar her dower at common law. Vernon’s Case, 4 Rep., 1, because by the rule of the common law a right or title which any one had to any estate of inheritance or freehold, as an estate for life which dower is at common law, could not be barred by acceptance of any manner of collateral satisfaction or recompense for it, but could only be barred by release or confirmation, or by an act which was tantamount to a release or confirmation. And for that reason prior to the statute the wife took both her jointure and her dower at common law on the death of her husband.
But by the enactments of the statute a jointure made before marriage possessing the qualities required by its provisions is declared to be a bar to the widow’s claim of dower, for it is expressly provided in the eighth section of it, that if any wife then had, or should thereafter have, manors, lands, tenements or hereditaments unto her given or assured after the marriage for the term of her life or otherwise in jointure (except the same be made to her by act of Parliament), and the said wife should survive her said husband then and in that case she should be at liberty to refuse on the death of her said husband to have and take the lands and tenements so to her given, appointed or assured during the coverture, for the term of her life, or otherwise in jointure, and thereupon to have, ask, demand and take her dower by writ of dower, or otherwise, according to the common law, of and in all such lands, tenements and hereditaments as her husband was and stood seized of any estate of inheritance at any time during the coverture. Clancy on Husband and Wife, 212, 213. And .the court first ruled the former as a necessary implication from this provision of the eighth section merely, for the statute contains no such express provision as ours does.
And accordingly it was ruled as early as Vernon’s case after the passage of the statute in which the jointure was made after the marriage, that if a jointure be made to a woman before marriage,
According to Lord Coke’s definition of it one of the requisites to the making of a perfect jointure within the statute, it must either'be expressed or averred to be in satisfaction of the wife’s dower, and while the statute was never inforce in this State or the territory which now constitutes it, although we find in a few of our colonial statutes some brief and general recognitions of what were then denominated as settlements in the nature of jointures in lieu of dower without any other definition or qualification of them, it is not at all improbable that the early and rigid rulings in the courts of England in regard to that particular requisite, led to the adoption of an express provision to the contrary in our first statute enacted in the year 1816 in relation to devises to wives in lieu of dower, which provides that if any testator shall after the passing of said act devise to his wife any portion of his real estate, such devise shall be deemed and taken to be in lieu and bar of her dower out of the estate of her deceased husband in like manner as if the same was so expressed, unless such testator shall by his last will and testament declare otherwise, any law, usage or custom to the contrary notwithstanding: provided that nothing in this section contained shall deprive the widow of her choice, either to dower or the estate so devised, which choice shall be made before the Orphans’ Court of the county in the mode prescribed in it. Digest of 1829, p. 168.
Under the statute of 27 Hen. 8. c. 10, it was early ruled that a devise by will was no bar of dower, unless it was expressly stated in it to be in satisfaction of dower; but if it was expressed
But the defence in bar of dower set up in the case now before this court, is claimed to be • an equitable defence purely consisting of an agreement entered into between William McCaulley and Sabilla McCaulley, his wife, after their marriage to settle upon her by their deed of trust through the intervention of Robert Wad-dell, as her trustee, all the property, real, personal and mixed belonging to her at the time of the marriage, to her sole and separate use, control, management and disposition, as fully as if she were a femme sole, for and during the life time of her said husband, William McCaulley, upon the express condition only that the said Sabilla McCaulley should and would pay all her own debts due from her before said marriage, and renounce all interest in the real and personal estate of her said husband, the said William Mc-Caulley, except what he may give and devise to her by his last will and testament or by deed or other instrument during his lifetime, and when requested by her said husband join with him in any deed or deeds for the conveyance of his real estate or any part or parts thereof, and which covenant he performed by devising to her one-eleventh part of all his real and personal estate in his last will and testament in lieu of her dower, and therein referring to this stipulation of hers in the agreement as warranted by it.
Notwithstanding, however, a jointure settled on a woman previous to her marriage with the intention that it should be a bar to her claim of dower, might be wanting in many of the particulars requird by the statute in England, still it might secure as sufficient a provision for her, as if it wére precisely conformable to all the requisites of it, and therefore it would be unjust that a widow in such a case should take advantage of the defect, and have both jointure and dower; and accordingly, to prevent this injustice where such a settlement had been made, a court of equity acting on the consciences of the parties would enforce a compliance with the contract by the widow, and restrain her from suing for dower. Nevertheless, although the 27 Hen. 8, will be so far restrained in its operation, equity in the exercise of this jurisdiction will always attend to the distinction made by the statute itself between pro
And yet, as I have before said, notwithstanding the statute of 27 Hen. 8, never had any operation or effect, per se in this State or the territory now composing it, as the provisions of our colonial statutes, and particularly of our act of 1816, in relation to jointure and devises by testators of any portion of their real estate to their widows in lieu of dower, and the election thereby secured to them in such cases, were evidently derived from that statute, it strikes me that the well established principle and distinction ruled in the Courts of Equity in England between such contracts made by a husband and wife before and during their marriage, apply with even greater force in such cases under our statute than under the English statute, inasmuch as the provisions of our statute in both respects are drawn apparently by design in stricter and more imperative terms than those of the English statute; for while under the statute of 27 Hen. 8 the ruling of the court on the first point that where the jointure was made before marriage it was a bar to the claim of dower and admitted of no election, was by implication merely, nor was anything said in it as to the age of the intended wife, our statute expressly provides in the 3d Section of it in relation to jointure that “ If a woman of the age of twenty-one-years or upwards, (under the English statutes, she may be a minor
In support of the equitable defence set up against the claim of dower in this case one of the first authorities to which the counsel for the appellants have referred us, is the case of Farrow v. Farrow, 1 Del. Ch. Rep. 457, before Chancellor Ridgely in the Orphan’s Court of Kent County, February Term, 1822, but in that case, which was six years after the enactment of our present statute, and when it constituted the only statutory provisions then in force in the State in regard to jointures or devises of real estate and election in lieu of dower, he fully recognized as existing under them in this State the distinction between a contract made before and during
The case of Livingston v. Livingston, 2 Johns. Ch. Rep., 537, is no authority, I think, on the question now before us, because it did not involve a contract or agreement concerning dower or
But as I have before observed, the agreement in that case was not a contract between a husband and wife for a collateral satisfaction of dower, or a jointure in lieu of it, nor had it any of the elements or features of such a contract, and therefore the ruling in
So in the case of Liles v. Fleming, 1 Dever., Eq., 185, the contract was not for a collateral satisfaction of dower, but the husband had before the marriage agreed with the wife that in case there should be a child of the marriage all the property to which she was entitled, either in possession or in action, should be settled upon her, and after their marriage and the birth of a child to them he confirmed it by giving her a written acknowledgment under his hand and seal in the following terms: “ Be it known to all whom it may concern, that I, Jacob Liles, of &c., having intermarried with Frances Holland, widow, &c., and by her having had one, son called Richard Liles, I do hereby certify that all the property which came by my said wife of every description I give to her and her heirs forever.” The bill in equity was by the wife against his executor and others after his death, and her claim was for personal property and money exclusively which she had at the time of the marriage, consisting in part of slaves, several of which he had bequeathed by his will to his children by a former marriage, and in it had made a very small provision for the plaintiff who had formally entered her dissent from it. The prayer was to have the defective instrument set up, and also for a distribution of the assets of the testator pursuant to the statute. The defendants in their answer put the plaintiff to the proof of the ante-nuptial agreement, and insisted if it was made that the plaintiff should be put to her election, contending that she could not claim under the agreement, and also her distributive share of the testator’s assets. But the court held upon the evidence and the proof specially referred to and stated in the opinion that the testator had declared and admitted that he had executed the paper in pursuance of his engagement entered into with her before the marriage, she was not to be put to an election, but was entitled to take under the agreement, and also her distributive share of the assets of the testator.
But I will state in order to show that Livingston v. Livingston is not considered under the particular circumstances of that case an authority in the State of New York on a post-nuptial contract between husband and wife similar to the contract in the case before us, that is to say, for a collateral satisfaction of her right of dower or election under the statute of that State. I will refer to a recent case in the Supreme Court of that State in which it was decided that an agreement by a wife in articles of separation to release her dower in her husbands lands, will not discharge them therefrom, unless she elects to ratify the agreement after his death. Although she accepted and had been for many years during his life time, and still was since his death, in the enjoyment of the pecuniary provision for her maintainance therein given, she is not estopped from claiming dower after her husband’s death. The wife cannot release to her husband her dower right directly or indirectly. Gridet v. Brown, 3 Abbott’s New Cases, 295. By the articles of separation the quiet and undisturbed possession of the sum of three thousand dollars paid to her trustee named in them, and all her persona] property of which she was then or might , thereafter become possessed with the right to dispose of the same, as though she were a feme sole and unmarried, were guaranteed to her, and which she agreed to accept in payment and satisfaction of all and every claim on her part for or by reason of her intermarriage with him, for alimony, dower, right of dower or otherwise, and thereby released the lands whereof he was then seized from all dower and right of dower, and also all claim of dower in and to any land he might thereafter become seized of, and covenanted upon request to execute in the future and deliver to such person or persons _ as he or his heirs, executors or administrators might direct all necessary conveyances for the more complete release of any dower or claim of dower therein.
The two American cases of Livingston v. Livingston and Liles v. Fleming and others were each decided on their own particular circumstances, and although neither of them involved the question of an equitable bar of the legal right of dower in real estate, they have each gone further perhaps, than any other case cited in compelling compliance with post-nuptial contracts between husband and wife in courts of equity, but the justice and equity of the
