Pinkham v. Pinkham , 95 Me. 71 ( 1901 )

Savage, J.

In this writ of entry the demandants are the two sons of Elisha F. Pinkham, who died seized of the demanded premises, April 24,1899; the defendant is his widow. The widow claims a one-third interest in the premises by statutory descent under the provisions of section 1 of chapter 157 of the Public Laws of 1895. And it is agreed that if the widow’s claim is sustained, the demandants are entitled to judgment for two-thirds undivided of the premises; otherwise, for the whole.

The demandants claim that the defendant is barred of her statutory interest by the following agreement, made while Elisha F. Pinkham and the defendant were intermarried, and presumably, while they were living together as husband and wife:—

“By mutual consent and agreement this day entered into by and between Elisha F. Pinkham and Frances O. Pinkham, both of Augusta, Maine, man and wife, and for a valuable consideration paid by the one unto the other, receipt of which is hereby acknowledged, each does hereby release and discharge, convey and transfer unto the other all of his right, title and interest in dower of his or her real estate of which he or she is now seized or possessed, and of which he or she may die seized or possessed. And likewise do further hereby acknowledge full and complete satisfaction for and of each in the other’s personal estate at time of his or her decease, hereby waiving and cancelling and discharging each unto the other all claim and right of claim which each may have at the time of the other’s decease in each other’s estate, whether by allowance or widow’s or widower’s thirds, under general laws of the state, excepting this writing shall not cut nor interfere with any provision made in the will of the party who shall first decease, if any such provision shall be made in favor of the other.

In witness whereof we have hereunto interchangeably set our hands and seals this 12th day of February, 1896.

Elisha F. Pinkham (Seal)

Frances O. Pinkham (Seal) ”

In this agreement the parties make use of the word “dower.” Chapter 157 of the Public Laws of 1895, abolished dower and substituted therefor title and interest by descent, ah estate in fee. That statute was not in force as to these parties when this agreement was made, but it was in force when Mr. Pinkham died. But we think it is clear that, in using the word “dower,” the parties had in mind such interest as the defendant might have in her husband^ real estate at his death, be it “dower” under the old statutes, or “right and interest by descent” under the new. And thus we construe the agreement.

But is the agreement valid? We think not. At common law a wife could not bar her dower by a release to her husband during coverture. Rowe v. Hamilton, 3 Maine, 63. If such power now exists, it must be by reason of some enabling statute. Haggett v. Hurley, 91 Maine, 542. If the power be sought in the general statutes extending the powers of wives to contract with their husbands, we think the search will be unavailing. Certainly no such power is expressly given, and we think it is not given by any fair intendment. The principles controlling the construction of these statutes have recently been elaborately expounded in Haggett v. Hurley, supra, and we need not repeat them. Such statutes, as was said in that case, “must be construed strictly as in derogation of the common law, and as modifying a long approved policy.”

Now because the statutes empower a wife to convey her real estate to her husband, a matter of bargain and sale, or gift, it does not follow that she may divest herself of her dower right, or as we now say, her right and interest by descent, by simply contracting mutual releases with her husband. The two matters are different. The right and interest by descent arise by reason of the marital relation and continue, unless barred, as long as that relation exists. It is not barred by a sale to the husband, for if the wife convey her real estate to her husband, her inchoate right by descent springs at once into existence. It is not defeated nor barred.

The law jealously regards the rights of a wife in the estate of her husband. She may not be barred by his deed or his will, unless she joins in the one, oris willing to accept-the provisions of the other. She is even protected against her own too-easily persuaded confidence in her husband, her own improvident contracts with him. For if during coverture, jointure or pecuniary provision is made for her, even with her consent, and her dower or right and interest by descent would be thereby barred, she may waive the provision, and save her interest. B. S., chap. 103, § 9; Public Laws 1895, chap. 157, § 4.1

Had it been the intention of thé legislature to grant to wives a power of so serious a character and of such doubtful utility to them as the irrevocable power claimed in this case would be, we think that intention would have been more clearly expressed.

The legislature has, however, permitted the barring of dower or the interest by descent in certain specific ways, and with certain safeguards. But none of these statutory methods were adopted in this case. This is not a statutory “marriage settlement,” because it is not an ante-nuptial settlement executed in the presence of two witnesses. R. S. chap. 61, § 6; Wentworth v. Wentworth, 69 Maine, 247. Nor is it a “jointure.” R. S., chap. 103, § 7; Vance v. Vance, 21 Maine, 364. Nor is it a joinder in a conveyance made by the husband. R. S., chap. 103, § 6. Nor is it a “pecuniary provision,” R. S., chap. 103, § 8, because the provision is not “pecuniary.” Davis v. Davis, 61 Maine, 395; Bouvier’s Law Dictionary, Tit. Pecuniary. In Woods v. Woods, 77 Maine, 434, cited and relied upon by the learned counsel for the demandants, the provision was, in part at least, pecuniary, “one thousand dollars in money.” And upon this fact the decision of the court was expressly based.

Besides, if the agreement in the case at bar could be held to be a pecuniary provision, the case shows that the widow seasonably elected to waive the provision. Public Laws 1895, chap. 157, § 4. And this she could do, for the provision was made after marriage. R. S., chap. 103, § 9.

The defendant, therefore, took one-third in common and undivided of the demanded premises as her right and interest by descent from her husband, and the demandants are entitled to judgment for the remainder.

Judgment for demandants for two-thirds in common and undivided of the demanded premises.