Hall v. Savage

11 F. Cas. 252, 4 Mason C.C. 273

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1826
• Status: Published

Opinion

STORY, Circuit Justice.

Upon the facts stated in this case, it appears to me clear, that by the local law of Massachusetts the de-mandant is not barred of her dower. The instrument sealed by her was executed long after the principal deed purports to have been executed by her husband. If, in its terms, the instrument had purported expressly to release her right of dower, I do not think that it would have been, under such circumstances, a bar by our law. The principles applicable to this point were fully considered in Powell v. Payne [Case No. 11,358], in this court, and it is not necessary to do more than refer to them. •

But I think also, independent of this point, that the instrument cannot be deemed, in construction of law, a release of dower. It does not purport to be such a release. The words are, “I agree in the above conveyance.” This can mean no more than her assent to her husband’s deed, and that he may sell. But it cannot be interpreted to mean, that she thereby released her dower. If such an instrument had been good, there would have been no reason to hold, that a signature of the wife in blank to the deed of her husband, ought not to be held to operate a release of her dower, because it can have no rational interpretation, but as an assent to the deed. The rule of law appears to me plain, that the wife cannot release her dower, except there be apt words to* express such intention. Doubtful words ought never to be construed to have such an effect. The de-mandant is, therefore, entitled to judgment.