Smith v. Howell

| Ark. | May 17, 1890

Hemingway, J.

It is provided by the statutes of Arkansas, that a married woman may relinquish her dower in any real estate of her husband by joining with him in a deed of conveyance thereof. Mansf. Dig., sec. 649.

Under this statute it has been ruled that a married woman could relinquish dower only by joining her husband in a conveyance to a third person; and that an instrument executed by her alone, whereby she undertook to relinquish dower to a third person or to her husband, would be inoperative. Witter v. Bisco, 13 Ark., 423; Pillow v. Wade, 31 Ark., 678.

Relinquishment of dower is inoplneffectualThe inchoate right of dower during the life-time of the husband is not an estate in land — it is not even a vested right, but ‘‘a mere intangible, inchoate, contingent expectancy.” The law regards it as in the nature of an incumbrance on the husband’s title, and the statute cited provides a means whereby he may convey his title free from the incumbrance. She joins, not to alienate any estate, but to release a future contingent right. The grantee must look alone to the husband’s conveyance for his title. The relinquishment can be invoked for no purpose but to aid the title passed by his deed which contains it; therefore, when that title fails, the relinquishment becomes inoperative. Such is the rule of the court of appeals of New York in construing the statute of that State, from which our law regulating the right of dower was taken. Hinchliffe v. Shea, 103 N.Y., 153" date_filed="1886-10-05" court="NY" case_name="Hinchliffe v. . Shea">103 N. Y., 153; Witthaus v. Schack, 105 N.Y., 332" date_filed="1887-04-19" court="NY" case_name="Witthaus v. . Schack">105 N. Y., 332; 2 Scrib., Dow., chap. 12, sec. 49; Stinson v. Sumner, 9 Mass., 143" date_filed="1812-06-15" court="Mass." case_name="Stinson v. Sumner">9 Mass., 143; Douglas v. McCoy, 5 Ohio, 522; Blain v. Harrison, 11 Ill., 384" date_filed="1849-12-15" court="Ill." case_name="Blain v. Harrison">11 Ill., 384.

This court has never considered the effect of a wife’s statutory relinquishment where the grant of the husband had been defeated; but where the widow before assignment had attempted to transfer her right of'dower, it has held that, while she might relinquish it to the heirs at law or to one holding the legal title under the husband, and thus bar her right to recover dower, yet she could not transfer her claim of dower,, so as to vest in any other person the right of action therefor. Carnall v. Wilson, 21 Ark., 62. In the subsequent case of Jacoway v. McGarrah, 21 Ark., 347, the rule was approved, and it was further held that the transfer of the widow’s claim would not be good even in equity, for the reason she had no transferable interest.. If the doctrine of that case be correct, about which we are not now called to inquire, it leads to an approval of the doctrine held by the cases cited from New York, as to the effect of the married woman’s statutory relinquishment. We think the court of appeals correctly interprets the purpose of that statute, and the judgment of the circuit court was therefore correct.

Affirmed.