Postnuptial Settlements to Bar Dower.

Prior to the Married Women's Acts, the wife was incompetent to release her dower to her husband.59 But the Married Women's Acts" came after the Revised Statutes, and tended to place a married woman in a legal situation where she might contract even with her husband, and it is said thus agree to bar her dower by a proper postnuptial settlement.6 60 The present re-enactment of the Revised Statutes, it will be observed, is posterior in point of time to the Married Women's Acts, and this section now under consideration61 re-enacts again the provisions of section 12 of the Revised Statutes.62 This law 63 is, however, to be read in connection with the Domestic Relations Law, as they are part of the same statutory revision. Whether or not a feme covert may now irrevocably bar dower by a postnuptial settlement, it is certain that whenever she retains the consideration of such settlement it must remain an equitable bar to dower, if so agreed, and disentitles her to an election, at least until such consideration is restored.65 But a wife's mere release of dower to the husband direct, is not a proper bar to her dower.66

64

Intending Wife's Assent to Bar Dower. Although an intended wife's assent was not necessary to a legal jointure, there were, before the Revised Statutes, equitable jointures, which required the assent of the intending wife before they became valid bars in equity to dower. Indeed, the uncertainty of legal jointures made without

59 Crain v. Cavana, 36 Barb. 410; s. c., 62 id. 109; except in partition cases. See chap. 177, Laws of 1840, p. 128; chap. 472, Laws of 1880; § 1571, Code Civ. Proc.; §§ 51, 56, Domestic Relations Law, chap. 14, Consol. Laws. Cf. Wightman v. Schliefer, 45 N. Y. St. Rep. 698.

60 Chap. 537, Laws of 1887; 88 51, 56, Domestic Relations Law; Jones v. Fleming, 104 N. Y. at pp. 433, 434; Doremus v. Doremus, 66 Hun, III; Huff v. Wheeler, 27 Misc. Rep. 763; Dworsky v. Arndtstein, 29 App. Div. 274; cf. Hendricks v. Isaacs, 17 N. Y. 411; Townsend v. Townsend, 2 Sandf. 711; Witthaus v. Schack, 105 N. Y. 332.

61 $ 199, Real Prop. Law.

621 R. S. 741, § 12.

63 Real Prop. Law of 1909.
64 Chap. 14, Consolidated Laws.

65 Jones v. Fleming, 104 N. Y. 430, 433; Doremus v. Doremus, 66 Hun, III; Wood v. Seely, 32 N. Y. 105; Lee v. Timken, 10 App. Div. 213; $ 179, Real Prop. Law; cf. Townsend v. Townsend, 2 Sandf. 711; Hendricks v. Isaacs, 117 N. Y. 411; Dworsky v. Arndtstein, 29 App. Div. 274. See also under § 203, infra, how wife may bar her inchoate title of dower.

66 Wightman v. Schliefer, 45 N. Y. St. Rep. 698; s. c., 18 N. Y. Supp. 551; Hendricks v. Isaacs, 117 N. Y. 411; Townsend v. Townsend, 2 Sandf. 711; Witthaus v. Schack, 105 N. Y. 332; Huff v. Wheeler, 27 Misc. Rep. 763; cf. §§ 51 and 56, Domestic Relations Law.

67 Cruise, Dig., tit. 7, chap. 1, § 38; Drury v. Drury, 2 Eden, 65, 66.

the assent of the intending wife, long anterior to the Revised Statutes, caused most antenuptial provisions for married women to take the form of trust settlements, which, if they also involved the woman's separate property, were necessarily executed by her, and at the same time she often formally accepted the provision in lieu and satisfaction of dower. If she was an infant, the provision to bar dower required the assent of parent or guardian. The original revisers, by providing that the assent of the intending wife should be necessary to any settlement to bar dower, followed the equitable rather than the legal rule regarding jointures to bar dower.

69

Infant Wife. A postnuptial settlement on an infant wife is subject to her election and a fortiori does not bar her dower under this section, or on general principles of law relating to infants.70 289, 14 N. Y. St. Rep. 369; Sandford v. McLean, I Sandf. Ch. 117; Cunningham v. Knight, 1 Barb. 399.

68 Lord Hardwicke, in Drury v. Drury, 2 Eden, 65 66.

69 § 199, supra.

70 McIntyre v. Costello, 47 Hun,

§ 200. Election between devise and dower. If real property is devised to a woman, or a pecuniary or other provision is made for her by will in lieu of her dower, she must make her election whether she will take the property so devised, or the provision so made, or be endowed of the lands of her husband; but she is not entitled to both.

Formerly section 180, Real Property Law of 1896, chapter XLVI, General Laws:

§ 180. Election between devise and dower. If real property is devised to a woman, or a pecuniary or other provision is made for her by will in lieu of her dower, she must make her election whether she will take the property o devised, or the provision so made, or be endowed of the lands of her husband; but she is not entitled to both.71

Section 180 was formerly I Revised Statutes, 741, section 13:

13. If lands be devised to a woman, or a pecuniary or other provision be made for her by will, in lieu of her dower, she shall make her election whether she will take the lands so devised, or the provision so made, cr whether she will be endowed of the lands of her husband.72

Note on Revised Statutes, 741, Section 13.- Section 13, 1 Revised Statutes, 741, was amended by chapter 171, Laws of 1895; such amendment to take effect on the 1st day of January, 1896. But the original section was restored by the repeal of chapter 171, Laws of 1895, on June 14, 1895 (Chap. 1022, Laws of 1895).

Dower in Exchanged Lands. We have seen that at common law a widow was put to her election in respect of lands exchanged by her husband, and that she could not have dower in both parcels.73

Doctrine of Election between Devise and Dower. The doctrine -f election between devise and dower did not, however, grow out of the rule concerning dower in exchanged lands. The provision of the Statute of Uses relating to postnuptial settlements was broad enough to cover devises of lands in satisfaction of dower,74 although the Statute of Wills was enacted subsequently." The Statute of Uses provided that a surviving wife might, at her husband's death, elect to take either a provision made for her or her dower, and such a provision might, after the Statute of Wills, be made by will. Courts of equity then put her to her election.76 The

71 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 72 Repealed, chap. 547, Laws of 1896.

73 Supra, under § 191, Real Prop. Law; Co. Litt. 31b.

74 27 Hen. VIII, chap. 10, § 9.

75

32 Hen. VIII, chap. 1; 34 & 35 id. chap. 5.

76 Co. Litt. 36b; Larrabee v. Van Alstyne, Johns. 307.

doctrine of election between devise and dower was founded on the principle that a person shall not be permitted to claim under any instrument, whether it be a will or a deed, without giving full effect to it in every respect, so far as such person is concerned." But all the old cases, English and American, hold that the intention to exclude dower by a devise must be demonstrated either by express words or clear and manifest intention; so that, if there is anything ambiguous or doubtful, the legal right to dower prevails, and the devise is additional to dower and not in lieu of it.78

The Revised Statutes. The Revised Statutes simply adopted the equitable principles of election indicated, and made the widow's acceptance of a provision, given her in lieu of dower, a bar both at law and in equity,79 although such acceptance was thought, before the Revised Statutes, to be a legal as well as an equitable bar.80 But the intention to exclude dower by devise must be clear, or else the legal right to dower prevails as before the Revised Statutes.8

81

The inten

Construction of Devise which puts Widow to Her Election. tion to exclude dower need not be express; it may be manifested by a provision wholly inconsistent with the right to dower; and in such cases the widow will be put to her election. She cannot have

81 Supra, p. 727; Fuller v. Yates, 8 Paige, 325; Sandford v. Jackson, 10 id. 266; Church v. Bull, 5 Hill, 206; affd., 2 Den. 430; Lewis v. Smith, 9 N. Y. 502, 512; Matter of Zahrt, 94 id. 605; Konvalinka v. Schlegel, 104 id. 125; Mills v. Mills, 28 Barb. 454; Kimbel v. Kimbel, 14 App. Div. 570, 572; Matter of Smith, 1 Misc. Rep. 269; s. c., 22 N. Y. Supp. 1067; Gray v. Gray, 5 App. Div. 132; Purdy v. Purdy, 18 id. 310; Miller v. Miller, 22 Misc. Rep. 582; Closs v. Eldert, 30 App. Div. 338; Horstman V. Flege, 61 id. 518; affd., 172 N. Y. 381; Matter of Grotrian, 30 Misc. Rep. 23; Hopkins v. Cameron, 34 id. 688; Matter of Grotrian; 35 id. 257; Oith v. Haggerty, 126 App. Div. 118.

both.82 But it has been frequently held that a devise of all testator's lands, with peremptory powers of sale or trust for sale is not inconsistent with a right to dower; the trustees take the lands with all their legal incidents, including dower. Nor is the fact that the provision made for the wife exceeds in value her dower right conclusive of intent to exclude dower.84

83

Widow's Provision Entitled to Preference. Where a bequest is made. to a widow in lieu of dower and she accepts it, she is entitled to preference over other legatees, debts being first paid.85

Joint Note to Husband and Wife. Where husband and wife hold at his death a note payable to the order of both, she takes the note as a gift,86 and by reason thereof is not put to her election respecting her right to dower, even though the will give her certain property, real and personal, in lieu of dower.87

The widow's election

Widow's Election in Ease of Husband's Estate. is in ease and benefit of the testator's estate, and not for the benefit of the devisees and legatees only; it operates as a limitation to the claims of the widow, and the fact that the other devisees and legatees do not insist upon the bar is immaterial.88

Interest on Legacy in Lieu of Dower. A provision accepted in lieu of dower does not bear interest from date of husband's death, but only from the expiration of one year from the issuance of letters testamentary.89

82 Savage v. Burnham, 17 N. Y. 561; Vernon v. Vernon, 53 id. 351; In the Matter, etc., of Zahrt, 94 id. 605, 609; Konvalinka v. Schlegel, 104 id. 125, 129; Nelson v. Brown, 144 id. 384, 391; Asch v. Asch, 18 Abb. N. C. 82; s. c., 113 N. Y. 232; Jurgens v. Rogge, 16 Misc. Rep. 100; Starr v. Starr, 54 Hun, 300; Hopkins v. Cameron, 34 Misc. Rep. 688; Matter of Gordon, 172 N. Y. 25; Matter of Johnson, 50 Misc. Rep. 99; Wilson v. Wilson, 120 App. Div. 581.

83 Konvalinka v. Schlegel, 104 N. Y. 125, 131; Gray v. Gray, 5 App. Div. 132. And see under § 170, Real Prop. Law, supra, p. 703, "Dower Favored."