Naill v. Maurer

Cochran, J.,

delivered the opinion of this Court.

This bill was filed by the appellee for an allowance of dower in the real estate of which her husband, Paul Maurer, died seized. The appellants admit the material allegations *538 of the bill, but aver, by way of defence, that her right to dower was barred by an ante-nup'tial contract with her husband, a copy of which they exhibit with their answer. As both sides concede, the question to be decided depends upon the true operation and effect of that instrument. We have considered, with much diligence and care, the circumstances under which this contract was executed, as well as the relations previously and then existing between the contracting parties; and we find, apart from those portions of the evidence covered by exceptions taken in the Court below, enough to satisfy üs that the contract was entered into in good faith, and with a Ml and clear understanding of the purpose contemplated by its terms. There is not the slightest evidence that its execution was induced by imposition or fraud, or that the appellee was, from any eause, incompetent to bind herself by its stipulation. The contract was made in contemplation of marriage, and, as clearly appears, was intended to-bar or prevent the acquisition thereby of any right by either in the property of the other, in order that the marriage proposed might take place. The main object in view was the consummation of the marriage, and it was to that end that the contract was executed. It seemed almost impossible to view the contract as founded on any other consideration, although the reciprocal character of the stipulations might be held to- constitute one sufficient te make the contract binding and effective. But whether the marriage they proposed be expressly mentioned as a consideration or not, we think it must be regarded as such within the purview and meaning of the contract; and we accordingly hold that the contract cannot be avoided on that ground, nor can its legal operation be affected by the 289th section of Art. 93 of the Code. That is- a simple statutory declaration, that a settlement of property by jointure or otherwise, on a woman by ■ her husband, before marriage, shall bar her of dower in his hinds; but it goes no further, and camnct be said to deprive- *539 tier of tbe power to bar ber right to dower by any other form, of ante-nuptial contract. It amounts to nothing more than a declaration of the effect of the settlement in that class of cases. This, however, is not the case of a settlement or jointure, but of a contract, by which the appellee has expressly relinquished all right to claim any estate or interest in the property of her deceased husband; a contract executed in good faith by parties legally competent, and, as we have said, sustained by a good consideration. ITer power to bind herself by such a contract, in equity, must be admitted, and we do not doubt that this contract constitutes an equitable bar to the claim sought to be enforced by this bill. The authorities upon this point are full and conclusive. In Dyke vs. Randall, 13 Eng. L. & E. Rep., 404, the Lord Chancellor, in distinguishing an equitable from a legal bar of dower, says: that as to an adult, it may depend upon contract, and “that there is no doubt you may bar any possibility; you may deal with your rights in this Court, of whatever nature they may bo, by contract fairly entered into.” In the case of Cauley vs. Lawson, 5 Jones Eq. Rep., 132, an agreement between parties contemplating marriage, “ that neither, after the death of one, should claim anything belonging to the other before marriage,” was held sufficient in equity to bar the right to dower; and so, also, in Findley’s Ex’rs vs. Findley, 11 Gratton, 434, it was said that parties, when about to contract fhe relation of husband land wife, “may by agreement vary or wholly waive the right of property which would otherwise result from the marriage.” The case of Gelser vs. Gelser, 1 Bailey’s Eq. Rep., 387, is also in point. The agreement there, as here, was, that neither of the parties, upon the death of either, should claim any interest or estate in the property of the other; and this agreement was determined to be an equitable bar to the claim of dower.

This is not a case in which specific performance of the contract is sought by the appellants, as the appellee suggests. *540 but one in which she seeks relief in violation of an agreement by which she is equitably bound ; an agreement which, unimpeached, attaches to and suspends, or extinguishes the right or claim she seeks to have enforced ; and it was therefore necessary for her, in making out a case upon which the relief sought could be granted, to show some defect in the contract2 upon which it could be declared void. This has not been done, and her claim to dower in her husband’s property must, upon this record, be treated as barred by the contract. The 30th sec. of Art. 16 of the Code, giving Courts of Equity concurrent jurisdiction with Courts of Law in cases of dower, cannot affect this disposition of the case. That section, as we understand it, does not, in giving jurisdiction to Courts of Equity in such cases, confer the simple jurisdiction of a Court of-Law, or limit the Courts of Equity in adjudicating claims for dower, by rules applicable only to proceedings at law. According to our construction of this provision, Courts of Equity are authorized to proceed according to the usual course in such Courts, and to determine and finally adjudicate claims for dower, by the principles and rules of equity; and in our opinion, where proceedings are had in equity to enforce a claim for dower the equities of the case should be considered and decreed upon accordingly.

(Decided July 19th 1866.)

Upon this consideration of the case, we shall reverse the decree of the Court below, and dismiss the bill without costs.

Decree reversed and Mil dismissed.