As thus re-enacted, these provisions of the Statute of Uses received the same construction accorded them in England, and a jointure barred dower here, as there.24 Before the Revised Statutes. the assent of the intending wife was not necessary to a legal jointure to bar dower. The legal jointure then derived its effect from the Statute of Uses.25

The Revised Statutes. The Revised Statutes and the repeal of the old Statutes of Uses and Dower made the actual assent of the intending wife or of her guardian or parent necessary to both a legal and equitable jointure, or antenuptial settlement, to bar dower,26 and the Real Property Law makes no change in this respect.27

Contracts before Marriage. At common law ordinary contracts between intending spouses were after marriage, by merger of interests, rendered unavailable at law. But by statute contracts made between intending spouses before marriage now remain in full force after their marriage, both at law and in equity.28

Contracts between Husband and Wife. Contracts between husband and wife are no longer void even at law; on the contrary they are cnabled and permitted by statute,29 with one exception: they cannot contract to alter or dissolve the marriage, nor can she release him from the obligation to support her.30

Infant Female's Assent. The provision of the statute, that an infant female's assent should be made by her joining with her father or guardian, was not entirely new, as it was thought that a legal or equitable jointure should be on notice to these same persons, in order to bind an infant at a time when the intending wife's assent was not deemed necessary to a valid jointure.3 Without the assent of parent or guardian an infant cannot now bar her dower.3 24 McCartee v. Teller, 2 Paige, 511; affd., 8 Wend. 267; Swaine v. Perrine, 5 Johns. Ch. 482.

25 27 Hen. VIII, chap. 10, § 6; I Roper, Husb. & W. 475; 1 R. L. 56; McCartee v. Teller, 2 Paige, 511, 559; affd., 8 Wend. 267; 4 Kent, Comm. 55; Cruise, Dig., tit. 7, chap. 1 § 37. 26 1 R. S. 741, 88 9, 10.

27 Supra, § 197, and infra, § 199, Real Prop. Law.

28 Chap. 375, Laws of 1849; now $ 33, Domestic Relations Law; chap. 14, Consol. Laws; Wright v. Wright, 54 N. Y. 437, 442; Matter of Young v. Hicks, 92 id. 235; Goldstein v. Goldstein, 35 Misc. Rep. 271.

31

32

29 § 21, chap. 272, Laws of 1896, now § 51 chap. 14, Consol. Laws.

30 Winter v. Winter, 191 N. Y. 462; Sunderlin v. Sunderlin, 123 App. Div. 421.

31 Cruise, Dig., tit. 7, chap. 1, § 38; Drury v. Drury, 2 Eden, 65, 66; I Roper, Husb. & W. 486, note.

32 Cunningham v. Knight, 1 Barb. 399. See as to antenuptial settlement by infant of her own estate: Bool v. Mix, 17 Wend. 119; Temple v. Hawley, I Sandf. Ch. 153; Strong v. Wilkins, 1 Barb. Ch. 9; Wetmore v. Kissam, 3 Bosw. 334; McIlvane v. Kadel, 30 How. Pr. 193.

§ 198. When dower barred by pecuniary provisions. Any

pecuniary provision, made for the benefit of an intended wife and in lieu of dower, if assented to by her as prescribed in the last section, bars her right or claim of dower in all the lands of her husband.

Formerly section 178, Real Property Law of 1896, chapter XLVI, General Laws:

§ 178. When dower barred by pecuniary provisions.

Any pecuniary provi

sion, made for the benefit of an intended wife and in lieu of dower, if assented to by her as prescribed in the last section, bars her right or claim of dower in all the lands of her husband.321⁄2

Section 178 was formerly 1 Revised Statutes, 741, section II:

§ 11. Any pecuniary provision that shall be made for the benefit of an intended wife and in lieu of dower, shall, if assented to by such intended wife, as above provided, be a bar to any right or claim of dower of such wife in all the lands of her husband.33

Antenuptial Provision Bars Dower. The 6th section of the English Statute of Uses,34 which was re-enacted in the 8th section of the original New York "Statute on Dower," 35 provided for legal jointures as stated in the remarks on the last preceding section.36 With the growth of equity jurisprudence, the intending wife might be barred of her dower in equity by an antenuptial settlement, and the provision thus made was called an "equitable jointure" and operated as an "equitable bar" to dower,37 although an equitable jointure never barred dower" at law; the bar was enforced only in equity, and if the wife were evicted of her equitable jointure, equity would not interfere to deprive her of her dower.38 The original revisers of the New York statutes, taking equitable bars into consideration, made any pecuniary provision, duly assented to by the intending wife, a bar to dower both at law and in equity.39

Amount of the Provision. Prior to the Revised Statutes there was much uncertainty as to the amount of the property necessary to satisfy the Statute of Uses and operate as a legal jointure; es

32 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

33 Repealed, chap. 547, Laws of 1896.

34 27 Hen. VIII, chap. 10.

35 2 J. & V. 4; 1 K. & R. 51; 1 L. 56.

36 § 197, Real Prop. Law, supra, pp. 718, 719.

37 Lord Hardwicke, in Hervey v. Hervey, Atk. 562, 563; 4 Kent, Comm. 55.

381 Roper, Husb. & W. 486; Atherly, Marriage Settlements, 553; cf. Swaine v. Perrine, 5 Johns. Ch. 482, 489.

39 Revisers' note to I R. S. 741, § 11, and 1 R. S. 741, § 12, now 88 198, 199, Real Prop. Law.

pecially in the case of an infant wife whose assent could hardly be presumed, even if a wife's consent was ever necessary under the Statute of Uses, as was denied.41 The revisers in New York carefully provided for the intending wife's assent, but left the amount of the provision to bar dower to the agreement of the parties."

Nature of the Agreement to Bar Dower. The precise nature of the agreement necessary to bar dower should always be considered.43 The consideration need not now be made for the wife's benefit, through the medium of a trustee; as, since the "Married Women's Acts," the wife retains the custody and the dominion over her separate estate, and, therefore, the executed consideration of the antenuptial agreement remains hers after marriage and does not become the husband's again when the marriage takes place.44 While such an agreement between intending spouses will now be sustained, if fairly made,45 yet from the confidential relations of the parties it will be regarded with the most rigid scrutiny.46 The agreement must be in writing. It should be founded on some pecuniary provision for the benefit of the intended wife,48 and be made by her with full knowledge of the surrounding circumstances.49 It is safer that the intending wife should have independent legal advice.50 The agreement should expressly state that the pecuniary

47

40 See notes to I Roper, Husb. & W. 462, 479. But if the jointure was illusory or fraudulent, equity would relieve against it. Wilmot's Opins. 194; Cruise, Dig., tit. 7, chap. 1, $ 38; 3 Atk. 312.

41 Drury v. Drury, in the House of Lords, reported at the end of McCartee v. Teller, 8 Wend. 267, 297. 421 R. S. 741, §§ 10, II, now $$ 197, 198, Real Prop. Law. See Revisers' note, 1 R. S. 741, § 11, and Lewis v. Smith, 9 N. Y. at p. 511, on a kindred point.

43 Cf. Wadhams v. Amer. Home Miss. Soc., 12 N. Y. at p. 422; Dillaye v. Greenough, 45 id. 438; Matter of Benson, 96 id. 499, 507.

44 See the Married Women's Acts, note 80, p. 607, supra, and Wood v. Wood, 83 N. Y. 575; Jones v. Fleming, 104 id. 418, 431, and §§ 50, 51, 56, Domestic Relations Law, chap. 14, Consol. Laws.

45 Matter of Young v. Hicks, 92 N. Y. 235. See the agreement set out in this case and in Carpenter v. Carpenter, 40 Hun, 263; and see Matter of Benson, 96 N. Y. 499, 507; Matter of Stilson, 85 App. Div. 132.

46 Pierce v. Pierce, 71 N. Y. 154; Graham v. Graham, 143 id. 573.

47 § 207, Real Prop. Law. See as to oral equitable agreements in equity actions, Lowry v. Smith, 9 Hun, 514.

48 Graham v. Graham, 143 N. Y. 573, 580; s. c., 67 Hun, 329; Crain v. Cavana, 36 Barb. 410; s. c., 62 id. IC9.

49 Graham v. Graham, 143 N. Y.

573.

50 Graham v. Graham, 143 N. Y. at p. 577; Crousque v. Quinn, 14 Abb. N. C. 9, 11; Hays v. Union Trust Co., 27 Misc. Rep. 240.

provision for her is in lieu of, and in satisfaction of, all her claim and title to dower.51 It should be specific in its description of the estate affected, if it is intended to secure the consideration by a charge or lien.52

51 Sheldon v. Bliss, 8 N. Y. 31; Gray v. Gray, 5 App. Div. 132; Brown v. Brown, 117 id. 199.

52 Mundy v. Munson, 40 Hun, 304

§ 199. When widow to elect between jointure and dower. If, before the marriage, but without her assent, or, if after the marriage, real property is given or assured for the jointure of a wife, or a pecuniary provision is made for her, in lieu of dower, she must make her election whether she will take the jointure or pecuniary provision, o be endowed of the lands of her husband; but she is not entitled to both.

Formerly section 179, Real Property Law of 1896, chapter XLVI, General Laws:

§ 179. When widow to elect between jointure and dower. If, before the marriage, but without her assent, or, if after the marriage, real property is given or assured for the jointure of a wife, or a pecuniary provision is made for her in lieu of dower, she must make her election whether she will take the jointure or pecuniary provision, or be endowed of the lands of her husband; but she is not entitled to both.52%

Section 179 was formerly 1 Revised Statutes, 741, section 12:

12. If before her coverture, but without her assent, or if after her coverture, lands shall be given or assured for the jointure of a wife, or a pecuniary provision be made for her, in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both.53

Comment. Under the preceding sections of this act it has been stated that the consent of the intending wife was not necessary, before the Revised Statutes, to the validity of a legal jointure,55 and that as to a postnuptial settlement the wife might, at her husband's death, elect, under the Statute of Uses, to take her dower instead of the provisions thus made for her.56 The Revised Statutes made the assent of the intending wife necessary to a jointure to bar dower,57 and reserved the wife's right of election to reject the settlement and take her dower when the settlement was a postnuptial one.58

521⁄2 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 53 Repealed, chap. 547, Laws of 1896.

54 88 197, 198, Real Prop. Law. 55 Supra, p. 720.

56 27 Hen. VIII, chap. 10, § 9; I R. L. 56, § 9; McCartee v. Teller, 8 Wend. at p. 275.

57 Supra, 1 R. S. 741, § 10, 11, 12, and id. 742, § 16; now §§ 197, 198, 199 and 203, Real Prop. Law.

58 Supra, 1 R. S. 741, § 12; now $ 199, Real Prop. Law; Jones v. Fleming, 104 N. Y. 418, 430, 432; Crain v. Cavana, 36 Barb. 410; Guidet v. Brown, 3 Abb. N. C. 295.