Kelley v. Case

25 N.Y. Sup. Ct. 472

• Court: New York Supreme Court
• Decided: September 15, 1879
• Status: Published

Opinion

Per Curiam:

Whatever an inchoate right of dower may be, it is not included in the kinds of property specified in section 1, chapter 90, Laws 1860. Nor can it come within the provisions of section 7 of that act as amended by chapter 172, Laws 1862. It is a right which a married woman has always had ; and there is nothing in these acts which has changed its character, or has made it any more her sole and separate property than it always was.

But her right was formerly protected in equity. (Garlick v. Strong, 3 Paige, 440.) And on equitable principles it will now be protected. If she has been induced to release this right on a promise of compensation, such compensation should be made. The wife should be protected, if she has parted with her inchoate right, to the extent thereof.

Of course it is true, as the plaintiff insists, that mere inadequacy of consideration is not a defence to a promissory note ; that is asv between parties fully competent to contract with each other. But husband and wife are not fully competent. Originally they could not contract with each other at all at law. Now their additional rights to contract with each other are only such as necessarily arise from the separate ownership of property by the wife. In regard to this inchoate right of dower, we think it remains on the former footing; by which the wife will be protected against loss by reason of her release, induced by the husband's promise.

We think, therefore, that the referee rightly held that there could be no recovery for the balance of this note.

The judgment should be affirmed, with costs. .

Present — LeakNjgd, P. J., BoakdMAN and Pqllett, JJ.

Judgment affirmed, with costs.