Wilber v. Wilber

52 Wis. 298 | Wis. | 1881

Cassoday, J.

The county court has power to assign dower to a widow only in cases where her right thereto “is not disputed by the heirs or devisees, or any person claiming under them or either of them.” Section 3869, R. S.; section 8, ch. 89, R. S. 1858. Here the plaintiff’s right was disputed, and hence she was forced to proceed in the circuit court. The action is at law,'to recover the homestead and her dower interest in the other lands. The defense is her deed of release to her husband, executed and delivered during coverture, as a bar to the action. The widow of every deceased person is entitled to dower in all the lauds whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof, except in the cases specially provided for by statute. Section 2159, R. S.; section 1, ch. 89, R. S. 1858. It will not be claimed that the case here presented comes within the exceptions. During coverture the wife has an inchoate interest in her husband’s lands, but such interest is contingent, and does not become vested until the death of the husband. Bennett v. Harms, 51 Wis., 251, and cases there cited. So long as such interest remains inchoate and contingent, and not vested by the death of the husband, any attempted conveyance by her alone of lands still belonging to her husband is inoperative, as she has no vested interest to which it can attach. In Rowe v. Hamilton, 3 Me., 63, it was held that “ a feme covert cannot bar her dower by any release made to the husband during the coverture.” In Page v. Page, 6 Cush., 196, it was held that “ the deed of a married woman, executed by her alone, relinquishing her dower in land previously conveyed by her husband by his separate deed, does not bar her dower therein, either under the revised statutes or the statutes previously in force.” In Carson v. Murray, 3 Paige, 484, 503, it was held that “ a wife cannot relinquish her dower in the real estate of her husband by executing a release thereof to him, or in any other way than by joining with him in a conveyance to a third person.”

The grounds of this rule are well stated by Allen, J., in Marvin v. Smith, 46 N. Y., 575, where the court, following Carson v. Murray, said: “The inchoate right of dower not being the subject of a conveyance in any of the usual forms by which real property is transferred, and the doctrine of es-toppel, by which subsequently acquired titles are made to enure to the benefit of former grantees of lands with covenants of warranty, being inapplicable, it follows that the grantee or mortgagee claiming under an instrument executed by a married woman during coverture acquires no title to or interest in the dower of the grantor or mortgagor when the estate becomes absolute, whether dower has been assigned or not. The law will not effect indirectly, or by way of estoppel, that which cannot be accomplished by contract and the ordinary forms of conveyance.” In McKee v. Reynolds, 26 Iowa, 578, it was held, per Dillof, C. J., that “ the contingent right of dower of the wife in the husband’s lands, or his in hers, is not the subject of barter and sale between them; and, aside from an agreement to separate, it is not' competent for one to convey to the other his or her dower interest in real estate.” Por these reasons the statutes have provided the methods by which she may, during coverture, and while her interest in her husband’s lands are inchoate, forever bar herself therefrom. Has the plaintiff ever barred herself of the interest which she otherwise would have acquired in the lands in question, by any of the methods prescribed in the statutes? One method is by joining with her husband in his conveyance, or with his guardian in case he is under guardianship; or, in case he has already conveyed the land, she may bar her dower therein by giving her deed of the same land. R. S., sec. 2222; sec. 13, ch. 86, and sec. 13, ch. 89, R. S. 1858. This last clause first appeared in the revision, and since the death of the intestate. So she may authorize another by letter of attorney to bar her dower in the cases where she is authorized by statute to bar the same. Sections 2223-4, R. S. So by deed of jointure or pecuniary provision in lieu of dower settled on her with her assent before marriage. Sections 2167-9, R. S. If any such jointure or pecuniary provision be made before marriage, and without the assent of the intended wife, or if made after marriage, she shall make her election, after the death of her husband, whether she will take such jointure or pecuniary provision, or the share of his estate provided by statute. Sec. 2170, R. S.; sec. 17, ch. 89, R. S. 1858; and section 1, ch. 106, Laws of 1877. And she is deemed to have elected to take such jointure or provision, unless, within a year after the death of her husband, she files a notice in writing that she elects to take the provision made for her by law. Sec. 2172, R. S.; sec. 19, ch. 89, R. S. 1858; sec. 3, ch. 106, Laws of 1877. We are of the opinion that, oven regarding the moneys paid to the wife, as stated in the will, as a provision in lieu of dower, yet the petition to the county court for dower, within the year, was a sufficient election within the provisions of the statute. Zœgel v. Kuster, 51 Wis., 31. This right of election, being secured to the wife by statute, cannot be taken away from her by deed of release to her husband during coverture, nor can such right be taken away from her by the will of her husband.

By the Qonrt. — The judgment of the circuit court is affirmed.