Hastings v. Dickinson

A jointure, whether made before or after marriage, was no bar to dower at common law ; and no jointure is now a bar, within the statute of 27 H. 8, c. 10, (which has always been in force here,) unless it be a freehold estate in lands for the life of the wife, to take effect immediately on the husband’s death. Therefore, where, by a marriage settlement, the husband covenanted that the wife should have an annuity out of his estate, in consideration whereof, she covenanted not to demand dower in his estate, it was held that she was still entitled to her dower.

This was a writ of dower, and was submitted to the opinion ol the Court, upon a state of facts agreed and filed. From the statement it appears, that the demandant was once the wife of Thomas Hastings; that during the coverture, her said husband was lawfully seised in fee simple of the land, of which his widow demands her dower; that during the coverture, he mortgaged the lands in fee to Elizabeth Balch, then sole, but since married to William Dickinson, and with him the tenants in this action; that on the death of the said Thomas Hastings, the said mortgage not having been discharged, the tenants entered, in right of the wife, for condition broken. It further appears from this statement, that previous to the mat riage of the demandant with her husband Hastings, a marriage settlement was executed by them and one Jacob Watson as a trustee. In this settlement, the demandant covenanted with her intended husband, his heirs, executors, and administrators, that, in consideration of the intermarriage, and of the provision made by him by the covenants and agreements therein after mentioned to be done and performed on his part, for her support in case of widowhood, never to demand, claim, or challenge any right of dower for her thirds in the whole of the estate, of which the said Thomas might die seised and possessed. And the said Thomas, in consideration of the premises, for himself, his heirs, executors, and administrators, covenanted with the demandant, and the said trustee, that if she survived him, she should have full right and povver to demand and receive in money of his executors or administrators six per cent, on one fourth part of all the estate, of which he should die seised and possessed, after the payment of all his debts ; or at the rate of one dollar by the week, if the said six per * cent, was not an equiva- [ * 154 ] lent, and this annuity to continue during her life. There were some other stipulations and conditions in the said settlement •vhich have no bearing upon the present case. And it was further agreed by the parties, that the said Thomas Hastings died testate, having made in his will ■ some provision for the demandant; that she has renounced that provision; and that his estate is insolvent, and insufficient to pay all his debts. If, upon these facts, the Court should be of opinion that the demandant is entitled to dower in the land described in her writ, the tenants agreed to be defaulted, and that judgment should be rendered that the demandant recover her dower with legal damages and costs ; otherwise the demandant agreed to become nonsuit, and that the tenants should have judgment for their costs. At the last October term, Hilliard, of counsel for the tenants, argued that this marriage settlement was a bar to the demandant’s action ; that it is a perpetual covenant, which the Court, to avoid a circuity of action, would construe to be a release or estoppel; and that the intermarriage did not discharge the covenant. (1) A rea sonable expectation or even a hope of a contingent interest is a foundation for a contract. (2)