Detroit Trust Co. v. Baker ( 1925 )

The questions presented on this record are:

(1) Is the antenuptial agreement binding on defendant?

(2) Is she entitled to dower in the real estate of which her husband died seized?

(3) Is she entitled to dower in the real estate sold by her husband after marriage on land contract?

(4) What interest has she in the personalty?

I answer these in the order stated.

1. I concur with Mr. Justice WIEST in holding that the antenuptial agreement is binding upon her.

2. This agreement bars her right to recover dower in real estate owned by him at his death.

3. For a good and sufficient consideration she released her dower right in the lands sold by him under contract. In legal effect she signed those contracts and, therefore, has no dower interest in the lands contracted to be conveyed.

4. I think she is entitled to her distributive share of the moneys received by the deceased on such contracts. Such moneys have become a part of the personalty of the estate, and there was no agreement on her part to release any interest she might have therein.

A different question is presented as to moneys which the estate may receive from the vendees on such contracts. I say, may receive, because the executor may be compelled to forfeit the contracts and thus regain an unincumbered title to the real estate. In such event, it seems clear to me that defendant will not be entitled to a dower interest in the lands. And if not so entitled, I can see no reason why she should recover a distributive share of the sums which may be paid to the executor by the vendees in performance of the contracts. She agreed to accept the sum provided for her in the agreement as a consideration for her dower interest in these lands. It is unfair to those who benefit by the trust created by the testator to permit her to accept the consideration for her release and also secure a share of the after-acquired personalty, which is in effect that for which the consideration for her agreement will be paid to her. I do not think she is entitled to any interest in the proceeds of these contracts which may be received by the executor.

The rule stated by Mr. Justice WIEST —

"that the interest of the vendor in a land contract, upon his death goes to his administrator as personalty and does not descend as real estate to the heirs of the vendor, and, therefore, is not a subject of dower,"

— will, I fear, lead to much confusion. Under the statute (3 Comp. Laws 1915, § 11654):

"The widow of every deceased person shall be entitled to dower, or the use, during her natural life of one-third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof."

Unless the widow has barred her right to dower by antenuptial agreement or by signing the contract, it is clear that her husband may not deprive her of such right by entering into a contract for the sale thereof. The statute gives her such right in express terms, and she may enforce it notwithstanding any conveyance which he may make, whether by deed or contract. Her right to dower in lands, under the statute, is not dependent upon whether her husband "was seized of an estate of inheritance" therein at his death, but enures to her if he was so seized "at any time during the marriage, unless she is lawfully barred thereof."

Under the facts here appearing, the widow has by her agreement barred her right to dower in lands sold under contract, and I cannot but feel that what has been said by both Mr. Justice WIEST and myself as to her right of dower if there were no such bar is obiterdictum and should be omitted from both opinions.

The question presented in Re Estate of Pulling, 97 Mich. 375, is not here involved. It was there held that a widow was entitled to dower in the interest of her deceased husband in lands sold by him under contract before their marriage. We should not overrule this decision or even cast doubt upon the correctness of the holding under the facts before us.

As before stated, the dower rights of a widow are fixed by the statute. They rest upon the ownership of the husband in real estate "at any time during the marriage." The condition in which his interest in such real estate may be at the time of his death, whether or not it will then descend to his heirs as real estate or pass to his representatives as personalty, is in no way controlling of her right to dower as fixed and defined by the statute.

In Stephens v. Leonard, 122 Mich. 125, wherein the claim was made that the widow of a vendee had a dower right in the lands described therein, Mr. Justice MONTGOMERY, after quoting the statute, said:

"The legal estate has never rested in the defendant Henry R. Leonard in either case. Counsel cites the case ofClapp v. Galloway, 56 Mich. 272, as authority for the claim that a widow is dowable in lands held by her husband under contract of purchase. It would seem that the utterance of Mr. Justice SHERWOOD in that case was dictum. It is not in harmony with the decisions in this State, both before and after."

A similar question was presented in Dalton v. Mertz,197 Mich. 390. Chief Justice KUHN, speaking for the court, said:

"Mrs. Dalton had no vested interest in the property, and any rights she may have came to her from her husband. It is clear that she has no dower rights in the property held by land contract (Stephens v. Leonard, 122 Mich. 125) and her signature was therefore not necessary to the transfer of the land contract by assignment."

May it not be said that either the widow of the vendor or of the vendee is entitled to such dower right? This question, however, is not before us for decision.

I concur in the conclusion reached except that, in my opinion, the widow is not entitled to any distributive share of the moneys which have been or may be received by the executor as payments on the land contracts executed by the husband in his lifetime.

BIRD and MOORE, JJ., concurred with SHARPE, J.