M'Cartee v. Teller

2 Paige Ch. 511

• Court: New York Court of Chancery
• Decided: June 28, 1830
• Status: Published

Opinion

The Chancellor.

Before I proceed to examine the question whether the ante-nuptial contract was ever an equitable bar to the wife’s right of dower in this case, I will notice the last point made by the counsel for the defendants. It is supposed by them that by the will of the testator he intended to waive his right to insist oh the ante-nuptial contract ; and to give the widow the right to take her dower in his real estate, or to receive the provision made for her by the will, or that made previous to the marriage, at her election. On a careful examination of the provisions of this willr I am satisfied that such never could have been the intention of the testator. It is true, the provision in the will is in lieu of dower, as well as of the marriage articles ; and if the widow accepted it, she was required to release her dower, as well as to cancel the marriage contract. The counsel who prepared the will undoubtedly advised the testator that the ante-nuptial contract was not, at'law, a bar of the right of dower-It is very probable that he also informed him there was even doubt as to its being an equitable bar. It was therefore almost a matter of course to insert a clause in the will declaring this new provision to be in lieu of dower as well as of the marriage contract; and to direct a release of the dower as well as,the cancelling of the contract. In the clause relative to > the election, however, the testator is careful not to authortize the widow to elect between her dower and the testamentary provision; but only between the provision made in the will, in lieu of dower, and that contained in the ante-nuptial contract, which was also in bar of dower.

The question whether an infant was barred by a jointure made before marriage, was for a long time unsettled in England. Lord Coke says: “If the jointure be made before marriage, the wife cannot waive it and claim her dower at the common law.” (1 Inst. 36, b.) And in a note in the hand writing of Lord Hale, in the margain of Coke’s Institutes, he remarks: “ Though she be within age, as we see, she cannot waive.” This note, made more than 100 years previous to the final decision of the question in the house of lords, is the first dictum which I have been able to find on this subject. The first judical determination appears to be in the case of Jordan v. Savage, before Lord King, in 1733. (2 Eq. Ca. Abr. 102.) That was not a legal jointure under the statute, neither was the ante-nuptial provision set up in bar of legal dower. The estates of the husband were copy hold; in which, by the custom of the manor, the wife was entitled to the whole for life, as her free bench. The land, by an ante-nuptial contract, was settled in such a manner as to give her only the moiety, on the death of the husband, in the nature of a jointure, and in lieu of her customary estate. The wife being an infant, the question was whether she had a right to waive the provision made by the contract, and claim her customary estate in the whole. And the court of chancery considered the ante-nuptial settlement an equitable bar of the customary provision of the infant, by analogy to the statute respecting jointures, and that the infant, was bound to accept the provisions as an equitable jointure. In the case of Sice v. Seys, in 1740, (Barnard. Ch. R. 117,) the lord chancellor asserted the same principle, though the question was not directly before him there. And it was again recognized in 1748, in the case of Harvey v. Ashley. (Wilm. R. 219, n.) In a case before the master of the rolls, in 1734, (Carey v. Willis. 9 Vin. Abr. 249,) Sir Joseph Jekyll is said to have held a different language. By a note of that case from the register’s book, however, it will be found that the wife claimed the right of election •, on the ground that it was not agreed that the ante-nuptial provision should be in lieu of dower. (See 1 Roper, Hus. & Wife, 466.) The question as to an infant’s being bound by a jointure, I presume could not have been discussed in that case; and it is very improbable that a master of the rolls would undertake to overrule the decision which the lord chancellor had made but a few months before in the case of Jordan v. Savage.

In 1760, the case of Drury v. Drury came before Lord Henley, afterwards Earl of Northington, and was twice argued at great length, occupying in the whole seven days. It resulted in a decision by him, that an infant was not barred of her dower, either by a legal or an equitable jointure. The cause came before the house of lords on appeal, 1762, and this disputed question was finally put at rest in that country. Although three very respectable common law judges concurred in opinion with Lord Henley, that an infant was not bound by a jointure in any case, yet the weight' of authority, as well as the weight of judicial talent, was clearly in favor of the decision of the house of lords, on the appeal. This case, as reported by Brown, (5 Bro. P. C. 570, Earl of Buckingham v. Drury,) merely contains the statement of the case, the arguments of counsel, and the reversal of the decree. But in the notes of the judgments and opinions of Ch. J. Wilmot, published forty years afterwards, his very able and elaborate opinion on this question is now found. (Wilmot’s Opinions, 177.) He examined this question at great length, and with much ability, and seems to have exhausted thereon the whole store of ancient learning, in relation to the rights and liabilities of infants. He concurred in opinion with the majority of the common law judges, that the infant was barred. And by a reference to the report of this case by a grandson of Lord Northington, (2 Eden’s R. 60,) more recently published, it appears that the venerable Earl of Hardwicke, who held the great seal with such extraordinary reputation for about twenty years, but relinquished it on the formation of Pitt’s first ministry, in 1756, concurred with a majority of the judges, and delivered a most able opinion on the question in the house of lords. It also appears that the able and distinguished Lord Mansfield, then a member of the house of peers, also took a part in the decision, and voted in favor of a reversal of the decree.

In that case the ánte-nuptial contract was entered into by the lady while under age, and was executed by her in the presence of her guardian, who subscribed the same as a witness. The husband agreed that in case his intended wife should survive him, his heirs, executors or administrators should pay her, during her life, an annuity of £600, for an,d in the name of her jointure; which provisions she agreed to accept, in full satisfaction of her dower, and of her allowance, under the statute of distributions.. It was therefore finally settled by that case, that an infant is bound at law by a legal 'jointure ; and that in equity, in analogy to the legal rule, the infant may also be barred by an equitable jointure, settled upon her before marriage, by the consent and approbation of her parents or guardian. Although some members of the profession entertained doubts of the correctness of this decision, yet as it was made by the court of the last resort, and with the entire approbation and concurrence of the most distinguished judges in England, it became the settled law of the land as to all cases coming within the same principles, And being made previous to our separation from the mother country, it must be considered equally binding on us here. An equitable jointure, or a competent and certain provision for the wife, in lieu of dower, if assented to by the father or the guardian of the infant before marriage, and to which there is no other objection but its mere equitable quality, is therefore an equitable bar. (Corbit v. Corbit, 1 Sim. & Stu. R. 612.)

Perhaps a strictly legal jointure, under the statute which was in force at the time this ante-nuptial contract was made, was a bar, a provisione viri; and that the actual assent of the wife or her guardien, need not be proved to establish the validity of such a jointure. But even in such a case, I apprehend it would be a fraud upon the wife, and would not bind her in equity, if the fact, that a provision in lieu of dower had been made, was intentionally concealed from her and her friends or legal protectors until after the marriage. By the revised statutes, to constitute a valid bar of dower, the provision by way of jointure must be expressly assented to in writing, by the lady if an adult, and both by her and her father, or guardian, if she is an infant. (1 R. S. 741.) The distinction between legal and equitable bars is now abolished ; and hereafter the infant will be bound in the same cases and to the same extent as an adult.

In the case of infants, under the former law, this court, as to equitable bars, proceeded only in analogy to the statutory provision. But an adult female might in equity bind herself by an ante-nuptial agreement, to receive a simple pecuniary provision, although uncertain as to the time of its commencement, or as to the extent of its duration. (Per Lord Alvanley, 4 Bro. C. C. 513. Clancy, 221, 2. 1 Mad. R. 613.) To make a mere equitable jointure binding on the infant, it was necessary that the provision should be as beneficial to the infant, and as certain, as that required in a legal jointure to constitute "a legal bar. . In other words, it must be a provision to. take effect in possession or profit immediately on, the death of the husband and to continue during the life of the widow ; it must be made with the express or implied assent of the parent or guardian, and in satisfaction or in lieu of dower ; and it must be a reasonable and competent livelihood for the wife, in reference to the circumstances- and situation in life of the parties, the value of the husband’s estate, and the extent of the wife’s portion received with her on the marriage. (1 Inst. 36, b. 4 Kent’s Com. 53. Wilmot’s Opinions, 209.)

In this case the wife brought no portion to:the husband and he left a large real estate. By the ante-nuptial contract he gave to her, in addition to the furniture and plate, an annuity of $1200, to commence immediately on his death ; and he made it an equitable charge upon the real and personal estate of which he should die seised and possessed. The answer to the suggestion that the whole estate might be disposed of, or dissipated, before his death, appears to have been given by. Lord Hardwieke, in the case in the house of lords, ( 2-Eden’s R. 67 ;) that “ the spending of the property on which the equitable jointure was charged would be an eviction in equity, and consequently would- have remitted her to> her dower, in analogy to the eviction of the jointure at law.”

The only objections therefore to this ante-nuptial provision, as a valid bar of dower, in equity, are the conditions annexed to the commencement and continuation of the annuity. And as the infant is only bound by an equitable jointure, in .analogy to the statute, if these conditions would not have been binding on her as a legal, jointure, had they, been contained in a conveyance of a freehold estate before marriage, they cannot now constitute an equitable bar.

. It seemed to be taken for granted by the counsel for the complainant on the argument, that the conveyance of aa estate before marriage, to an adult female, during her wid- - owhood, by way of jointure, would bar her right of dower ; and could' not be waived by her after ■ the- death of the husband. But I do not think the counsel on either side examined that question with their usual industry and discrimination. The only case I have been able to find, in which the question has arisen on such a limitation, is the one reported by Sir Francis Moore, in the third year of the reign of Queen Elizabeth. (Moore’s R. 31, pi. 103.)' By that case it appears that the husband, by his will, devised all his lands to his wife, during her widowhood, in lieu of dower; and after his death she entered under the devise, and again married. Chief J ustice Dyer thought the right of dower was only suspended during the continuance of the particular estate. But Weston and Benloe, justices, held that the estate was a freehold, and only determinable by her own act; and as she had accepted of the particular estate in the whole premises, as a jointure, she could not afterwards claim dower in the remainder also. In Vernon’s case, which came before the same court a few years afterwards, (3 Dyer’s R. 317, a; Benloe & Dal. R. 210; 4 Coke’s R. 1; 3 Leon. R. 28, S. C.;) an estate, by way of jointure, was granted by the husband, after marriage, to the wife for life, on condition that she performed the will of her husband. After his death she agreed to this jointure, and took possession of the land so granted to her; and it was held, by a majority of the court, to be a good > legal jointure, within the statute. It will be seen that in neither of these cases was the jointure binding on the wife, if she had not assented thereto after her title to dower had accrued; it being made during coverture. Both cases, therefore, came within the ninth section of the statute concerning uses and wills. (27 Hen. 8, ch. 10. 1 Evans’ Statutes, 414.) By examining that section it appears that the, widow is bound by the acceptance of a freehold, given to her during coverture, “ for the term of her life, or otherwise, in jointure.” The voluntary acceptance of a conditional or determinable fee, after the death of the husband, is therefore within the words of that section of the statute. And in both of these cases the court placed their decisions upon the voluntary acceptance of thfe jointure, by the widow. In the case of the Marl of Buckinghamshire v. Drury, Chief Justice Wilmot says; “ The different form of pleading a jointure made before and after mar» riage, is extremely material, to prove that it is the act of the husband which makes the bar in the one case, and the1 subseqUent agreement of the wife which makes the bar in the other.” (Wilmot’s Op. 215.) Bacon also says: “ If an estate be limited to the wife on condition, her acceptance of such a conditional jointure makes it good.” (3 Bac. Abr. 714. Jointure, B. 2.) This distinction does not seem to have been noticed by Roper, who says, generally, that “ if the jointure be limited to the wife after the death of her husband, durante . viduitate, or upon condition that she perform her husband’s will, &c. such limitations, made in lieu of dower, will be good legal jointures.” (1 Roper’s Hus. & W. 462.) But Vernon’s case, aS reported in Coke, is the only "authority he refers to, to support this position. Clancy, on the other hand, recognizes the distinction. He lays down the rule that an estate for the life of the widow, on condition, is a good jointure, within the intent of the act, if the widow enters and accepts the conditional freehold. He then adds: “ But it would seem that a jointure of this description, although it were before marriage, would not be binding on the widow, unless, after the husband’s death, she enters and accepts the conditional estate.” And he also refers to Vernon’s case as reported by Lord Coke, to sustain that opinion. (Clancy, 209.)-

This distinction, I think may be supported on principle. Lord Coke says: “ Reasonable and legitimate dower belongs ‘ to every woman, of a third part of all the lands and tenements of which the husband was seised in his demesne as of fee.” (Co. Litt. 36 b.) Doti lexfavit is a legal maxim. And Lord Bacon, in his reading oh the statute of uses, says it is the common by-word of the law, that the law favoreth three things : life, liberty, and dower. It was not, therefore, the intention of the statute respecting jointures, to deprive the widow of: her common law right, without a fair equivalent. Hence, if she is to be barred a provisioñe viri merely, she must have an estate equal in its commencement and duration with that which the common law has provided; and uncloggéd with conditions and restrictions which may destroy the-right.- But with her own assent, a less certain provision of freehold may be Substituted. At the time of making this statute, a freehold estate alone was considered a fair equiyalent for a freehold; and therefore, at law, the acceptance of such an estate only, was held to be a bar of dówer, which was a freehold,

(a) If such an estate was settled on the wife, although it was a base or determinable fee and might not continue for her life, if she entered on the estate and elected to receive it in lieu of dower, after the death of her husband, she was concluded by such election, in analogy to the principle by which she was concluded at the common law, by the acceptance of dower ad ostium ecclesia, or ex assertsu patris, after the death of the husband. A court of equity therefore, by analogy, will bar the right in the one case by an adequate provision of equal duration with her dower, settled on her before marriage; and in the other, by her voluntary agreement, before the marriage, or after its termination, to accept any fair equivalent, without regard to the continuance of the provision. But in the latter case, as an infant was incapable of consenting, before the recent statute, she was not bound in equity by an ante-nuptial provision, clogged with conditions limiting its duration ; and she might make her election after the disability was removed.

The condition that the wife should live chaste, inserted in these marriage articles, could not be objectionable; because a breach of that condition would equally have forfeited her dower. As to the condition that she should not run her husband in debt, I have more doubts.

The other objection, that the annuity was limited to the widowhood of the infant, and has not been accepted by her since the removal of her disability to contract or assent, I must condsider fatal to the complainant’s claim of an equitable bar. In ordinary marriages, such a. limitation might not be considered as unreasonable. The chances of the wife’s outliving the husband are about equal; and if she survives, she will probably have arrived at an age when it may not be considered a very great hardship if she is compelled to live single, to preserve her jointure. But when an old man of seventy-five marries a lady too young even to make a valid contract to bar her do.wer ; when the frost of January weds the bloom of May, such a condition as this is inequitable and unjust. After she has sacrificed her youth to him, to share his frozen couch for a few years at farthest, it is unreasonable to impose upon her the obligation of living single for the rest of her life, as the condition upon which alone she is permitted to retain an equitable equivalent for her dower in his large estate. Such a provision, and under such circumstances, ought not to be enforced, as an equitable jointure, against an infant who has done no act to sanction it since the death of the husband.

Another objection to granting equitable relief in this case is, that the complainant has substantially assigned to the widow the third part of the rents and profits of the estate, as her legal doWer. As both parties acted on the supposition that the attte-nuptial contract was not binding on the widow, if they were under a mistake, it might perhaps be remedied at this time, provided both parties could be restored to the situation in which they were placed, in respect to this matter, when that assignment took place. But if the complainant has been deceived as to his equitable rights, he has also been the means of deceiving her, by not setting up this equitable claim in due season. If she had supposed that she was to lose both her annuity and her dower by marrying a second time, it is very probable ‘she would have postponed the marriage until she could make some composition with the devisees in regard to this annuity. At her age, and with the power of continuing the annuity for life, if she pleased, she certainly could have obtained a very liberal allowance in consideration of the relinquishment of future payments. Where there is merely an equitable bar of dower, it is certainly optional with the heir or devise,- whether he will insist on it or otherwise. If he assigns dower under sUch circumstances,this court will not relieve him, except upon some new ground of equity—as mistake or accident; and in such .case too, he should offer to do equity. Under the- circumstances of this case, if any relief as against the widow’s dower could be granted, it should be on the Condition of paying to her the annul iy for life, or a fair equivalent therefor, notwithstanding her marriage since the assignment of dower.

It is said however that the complainan t is a mere trustee, and therefore that his acts are not binding on the cestui que trust. I do hot intend to express any definite opinion on that point at this time ; but under the decision of the court of errors in respect to this will, 1 doubt whether the executors are trustees for any one. There is no allegation in the bill that there are any heirs of the testator in existance capable of taking this estate by descent, or as cestui que trusts by implication. If there are any, they should be parties ; so that the decree might bind them, if they are not already bound by the act of the executor in assigning dower. If the legal and equitable estate are united in the executors, on the ground that they took a conditional fee which has become absolute by the death of the child, this objection to the validity of the assignment of dower is untenable. If, on the other hand, their estate terminated with the life of the child of the testator and the land escheated to the state for want of heirs, the complainant has no equitable rights to protect, and this bill cannot be sustained. A defendant in an ejectment suit who has no interest in the land, either in his own right or as the trustee or legitimate representative of another, cannot come here to set up an equitable defence to the suit. If neither of the parties to the suit have any equitable claim to the property in dispute, this court will leave them to their legal rights. (Meigs v. Dimock, 6 Conn. R. 458.)

The order of the vice chancellor denying the application for an injunction was correct: and must be affirmed, with costs.

See Jickling’s Analogy between Legal and Equitable Estate,]). 156.