Stilson v. Stilson

Loomis, J.

The question arising in this case on the facts found, is, whether the respondent, Georgiana Stilson, is entitled to dower in the estate of Anan Stilson, from whom she was divorced in 1865, and who died in 1874.

In order to determine whether dower is due or not courts of equity .will always follow the rules of courts of law. Maybury v. Brien, 15 Peters, 21 .

The statute relative to dower which was in force at the time of the-death of Mr. Stilson, provided that “every married woman, living with her husband at the time of his death, or absent from him by his consent, or by his default, or by inevitable accident, or, in case of divorce, where she is the innocent party, and no part of the estate of her husband was assigned to her for her support, shall have right of dower in one-tliird part of the real estate of which her husband died possessed in his own right, to be to her during her natural life, unless a suitable provision for her support was made before the marriage by way of jointure.” Gen. Statutes of 1866, p. 421, sec. 82.

Under this statute it is obvious that the right of a woman divorced without alimony, where she is the innocent party, to dower, is precisely the same as that of a woman living with her husband at the time of his death.

The finding brings the respondent within the literal terms of the statute conferring the right of dower, and does not *20 bring her within any of the provisions by which dower is expressly barred. If the respondent is to be deprived of her dower it must be by force of the agreement alone. But the agreement can have no such effect, for several reasons.

It cannot be reconciled with the well settled rule that during coverture the wife cannot enter into any agreement with her husband, the effect of which shall be absolutely to bar her dower. At most she can only be put to her election after the death of her husband, or after coverture is ended. Martin v. Martin, 22 Ala., 86 ; Parham v. Parham, 6 Hump., 287; 1 Bishop’s Law of Married Women, § 433.

The petitioner attempts to avoid the above rule by the fact that the note for the benefit of Florence was not to be delivered to the custodian till after the divorce. But we see no space for repentance or election here, for the gift to Florence must take effect as soon as the coverture was ended, when it would be too late to prevent it. The agreement, ex vi termini, excluded any right of election on the part of the respondent.

Again, if we examine the terms of the agreement they will be found insufficient to defeat dower. A widow is not put to her election between dower and a testamentary provision in her favor unless it clearly appears from the will that the testamentary provision was intended to be in lieu of dower. Alling v. Chatfield, 42 Conn., 276 . The same principle ought surely to apply to an agreement during coverture, if indeed it is possible by such agreement to bar dower. There is nothing whatever in this agreement that shows any intent to bar dower.

The argument for the petitioner assumes that the provision for the benefit of Florence was equivalent to or a substitute for alimony. This is not correct. Alimony would have provided for tire support of the respondent. This was for the sole benefit of the daughter, and was in no way subject to the control of the respondent. So that the gift to Florence serves no purpose whatever that alimony would.

Neither is it true, as the petitioner further assumes, that an agreement not to ask for nor receive alimony is equivalent to an agreement not to ask for nor receive dower. True it is *21 that alimony if granted by the court would have barred dower, but an agreement to waive it may have been for the very purpose of saving the right to dower.

The finding does not show that alimony was waived in consideration of anything contained in the agreement, for the respondent proceeded on the basis that she did not want and would not take alimony, which makes it probable that she would have waived it at all events.

But even if it appeared that it was intended by the parties that the provision for Florence was a substitute for alimony which would otherwise have been claimed, we think as such an agreement cannot, to say the least, be favored, the court must see that some substantial pecuniary or property provision was made for the benefit of the wife in order to defeat her right of dower. But here no pecuniary consideration moved to the respondent on her waiving alimony. After indicating her purpose not to take alimony, the respondent appealed to the husband to provide for their daughter Florence. This can neither be considered a benefit to the respondent on the one hand, nor a detriment to the husband on the other. As to the latter it was presumptively doing what he might'be compelled in law to do—providing support for his minor daughter.

The only consideration which was a benefit to the respondent moving from her husband was the withdrawal of his opposition to a divorce, and this surely cannot be looked upon with favor by the court. Indeed, if necessary, we should incline to hold with the Supreme Court of Minnesota, that “ an agreement between husband and wife, in respect to alimony, made for the purpose of facilitating a divorce, is void.” Adams v. Adams, 24 Minn, (not yet published).

The further claim of the petitioner, that the respondent is estopped from claiming dower, is also untenable. There is nothing but the agreement upon which to predicate this claim, and if as an agreement it cannot' be construed to bar dower, it can have no such effect by way of estoppel.

We advise that the petitioner’s bill be dismissed.

In this opinion the other judges concurred.