Andrews v. Andrews

8 Conn. 79

Opinion

Bissell, J.

It is readily conceded, that the agreement entered into between the parties, before the marriage, and ancilliary thereto, does not constitute a legal bar of dower. The provision made for the wife, has none of the requisites of a legal jointure. Is it a bar, in equity; and will a court of chancery lend its aid to carry the agreement into effect? The only objection, which has been urged, and on which the court below dismissed the bill, is the inadequacy of the provision for the support of the intended wife. That the agreement was not founded upon a sufficient consideration, cannot be contended. Marriage itself is a valuable consideration. Besides, the husband relinquished, all the rights, wdiich, by the marriage, he might have acquired over the estate of the wife. This furnishes a decisive answer to the alleged want of consideration, and would to be equally conclusive upon the objection of inadequacy.

The case finds, that the intended wife was possessed of a large real and personal estate. The husband would have been entitled to the use of the former, during the joint lives of himself and his wife, and would have acquired an absolute title to the latter, by virtue of the marriage, How, then, can it be said, that this agreement was not beneficial to the wife? It is obvious, that the question whether a provision for the wife, be, or be not adequate, must depend upon a variety of considerations, and of which, the parties are, generally, the best judges. I can see no reason why such an agreement, deliberately made, and upon sufficient consideration, should not be enforced in chancery. Such contracts, especially in late marriages, are not unusual. They are opposed to no rule of law, nor to any principle of sound policy. On the contrary, they are, in my judgment, highly beneficial, and are eminently entitled to the aid of a court of chancery, where such aid is necessary to carry theift into effect; and especially is this true, where the contract has been executed, in good faith, by one of the parties. Such was the fact here. The contract was executed, on the part of the husband and his representatives. And the case finds, that it was entirely owing to the mistake of the scrivener, who drew the release, that the agreement was not carried into full effect, and the dower of the widow barred, at law. The relief sought for, by the plaintiffs, is, therefore, founded in the highest equity; and the claim to such relief is fully supported by authority. There is, perhaps, no principle better settled, than that any provision, which an adult, before marriage, agrees to accept in lieu of dower, will amount to a good equitable jointure. 1 Madd. Chan. 369. Sug. Law of Vend. 258. Jordan v. Savage, Bac. Abr. tit. Jointure. B. Charles v. Andrews, 9 Mod. 152. Williams v. Chitty, 3 Ves. jun. 545. Earl of Buckingham & al. v. Drury, 3 Bro. Parl. Ca. 492. (Toml. ed.) S. C. by the mame of Drury v. Drury, cited Harg. Notes to Co. Litt. 36. b. n. 228. Vizard v. Longdale, cited in Walker v. Walker, 1 Ves. 55.

The case of Selleck v. Selleck & al. (a) decided, by this Court, in June 3.812, and not reported, bears a strong resemblance to this ease, in all its leading features, and is, indeed, decisive of it.

I am of opinion, that the judgment of the superior court ought to be reversed.

The other Judges were of the same opinion; Peters, J. concurring solely on the authority of Selleck v. Selleck & al.

Judgment reversed.

Footnotes

(a)

The case of Selleck v. Selleck & al. was this. James Selleck, at an advanced age, married a second wife. Previous to the marriage, and in contemplation thereof, an agreement, in writing, was entered into between the parties; by which it was stipulated, that should the marriage take effect, and the wife survive her husband, his executors should pay to her, within four weeks after his decease, the sum of 100 dollars, in full of all claims, which she might have on his estate, in virtue of the marriage. This sum, the intended wife, on her part, agreed to receive in lieu of dower, and in full satisfaction and discharge of all claims, which she, by virtue of the marriage, might have upon the estate of her intended husband. The marriage took effect: and in 1808, James Selleck died, leaving his widow surviving. At the time of his death, he owned a real estate, of the value of about 6,000 dollars. The sum mentioned in the agreement, was paid to, and received hy the widow, within the time stipulated : And she, thereupon, executed and gave to the executors a receipt, acknowledging that she had received that sum in full satisfaction of dower in the estate of her late husband, and of all claims and demands, which she had, or might have, on said estate. This instrument was not under seal. She, afterwards, applied to the court of probate, for the district of Norwalk, to have dower allotted and set out to her, in the estate of her deceased husband. This application was sustained; and dower was set out to her accordingly.

On an appeal taken, this decree of the court of probate was affirmed, by the superior court, on the ground that the provision made for the wife, by the agreement, did not constitute a legal jointure, and was not, therefore, at law, a bar of dower; and that her dower having vested, could be released only by deed.

The heirs at law of James Selleck then preferred their bill in chancery, stating all the facts aforesaid, and praying for relief. The superior court found the facts stated to be true, granted the prayer of the bill, and decreed the title to dower, in the heirs at law. To reverse this decree, a writ of error was brought in the Supreme Court of Errors, and tried at the June term 1812; and by the court, unanimously, the decree of the superior court was affirmed.

Daggett and N. Smith, for the plaintiff in error. Sherman and Bissell, for the defendants in error.