Shelton v. Shelton , 20 S.C. 560 ( 1884 )

The opinion of the court was delivered by

Mr. Justice McGowan.

On June 26th, 1874, Marshall Shelton and his wife, with a view to living separate and apart, entered into an agreement under seal, as follows: “ I, Marshall Shelton, of the first part, hereby covenant and agree to give and convey to the said Isabella Shelton for her support and use, the following described property, being her equitable portion of my estate, to wit: One parcel of land, about seventy acres, described in deed of conveyance of this date, for her sole use and benefit during her natural life, with the dwelling thereon. Also, I further agree to give her one cow and calf, one shoat, one bed and bedding, one ewe and lamb, one chest, one spinning-wheel, and whatever of household articles are her individual property. Also the growing crop upon the land conveyed to her by deed and this agreement. I, Isabella Shelton, of the second part, hereby agree and bind myself to receive the above-mentioned property in lieu and in consideration of all claims and demands upon the said Marshall Shelton, or his estate, and hereby reliniquisli all further claims upon him for support or otherwise,” &c. The deed referred to was executed the same day, giving the said Isabella a life-estate in the said parcel of land with limitation over to their three youngest daughters, Mary Elizabeth, Mahala, and Emily Maria. The said Isabella, leaving her husband, took possession of the property.

In May, 1882, the husband, Marshall, died leaving a will, by which he divided the lands of which he died seized, into three parcels, one of which he gave to his daughter Sacharissa Griffith, one to his daughter Frances Hawkins, and the other he directed to be sold for the payment of debts, &o. Isabella, now a widow, and still retaining possession of the property conveyed to her by the articles of separation and the deed made in conformity thereto (being in amount about one-third of the property of her husband), instituted these proceedings in the Probate Court against Sacharissa Griffith for dower in the lands given to her by her father’s will, but she brought no action against the other devisees. Dyer Shelton, administrator with the will annexed of Marshall Shelton, and the said Sacharissa resisted the claim. The Probate judge held that the demandant, Isabella, had not received technical “jointure,” so as to be barred of her right of dower, which she had never formally relinquished ; but that her covenant in the articles of separation “ was intended to relinquish and bar her right of dower,” and 'that, having accepted the property given to her by the articles of separation, she could not retain that, and at the same time make a claim for dower in the remainder of her husband’s land given to others, and dismissed the petition.

The demandant, Isabella, appealed to the Circuit Court, and. Judge Wallace, sustaining the exceptions, reversed the decree of the Probate judge, and remanded the case for further proceedings in the Probate Court in setting off dower to the demandant. From this judgment the defendants appeal to this court upon the following grounds: “1. Because it is respectfully submitted, that his Honor erred in holding that the petitioner was not barred or estopped from claiming dower in the lands of which her husband died seized, by the deed of separation executed by her and her husband and the provisions therein contained. 2. Because his Honor, at least, erred in not holding that the said deed of separation and the said provisions taken in connection with the husband’s will, created a .case for election between her claim and dower and the life-estate in the lands conveyed to her. 3. Because his Honor, having held that the petitioner was entitled to dower in the lands of which her husband died seized, and the lands at his death being one tract only, erred in holding that the petitioner could maintain hér separate action against the respective devisee, notwithstanding the fact that none of them had gone into possession of their portions, but the entire tract was in the possession and under the control of the administrator with will annexed,” &c.

In this case the Circuit decree is so full and clear that very little need be added. The widow’s right of dower is one generally regarded by the courts with favor. Chancellor David Johnson, in Gordon v. Stevens, 2 Hill Ch. 47, said: “ It is one over which the husband has no control. He can neither dispose of it by contract in his life-time, nor direct the disposition of it after his death by will or otherwise. She can only dispose of it by her own act or voluntary contract.” We agree with both the Probate and the Circuit judge, that the acceptance of.the property conveyed to the wife, Isabella, under the articles of separation, in the life-time of the husband, cannot be considered as “jointure,” operating by force of law as a substitute for and in satisfaction of her dower, under section 1800 of general statutes. See the case of Gelzer v. Gelzer, Bailey Eq. 388.

While the husband has no right to control the dower of his wife, he has the right to annex to the disposition of his property any conditions he may think proper, which are not illegal. He may, therefore, make a gift to his wife, with the express declaration that it is in lieu and bar of dower in his estate. This raises a case of election. The wife may decline the gift and insist on dower; but if she accepts it, she takes it with the condition of renouncing dower, and it must necessarily so operate. So far as we are informed, there is nothing in the will of the testator which can, as to the widow, raise a case of election. No gift is made to her in the will, with or without conditions. It does not appear that her name is mentioned in it.

It is, however, insisted that the previous conveyance to the wife was necessarily in lieu and bar of dower, and raised a case of election. The articles of separation do not state that Marshall Shelton made the conveyance in lieu and bar of dower, but “ for her support and use.” Suppose that the identical words of the covenant of separation had been a part of Shelton’s will, even in that case they would not have excluded dower, for the rule is “ that the intent to exclude the right to dower by a voluntary gift must be demonstrated by express words, or by clear and manifest implication, and this implication must arise from some provision in the will, inconsistent with the operation of the plaim.” Gordon v. Stevens, supra. In the case supposed it would be inconsistent for Mrs. Shelton to make the claim as to the land given her for life, but not as to the other lands of the testator. Cuningham v. Shannon, 4 Rich. Eq. 135; Wilson v. Hayne, Chev. Eq. 40; Shaffer v. Shaffer, 16 S. C. 625.

But it is further said that, in the articles of separation, the demandant voluntarily covenanted that she would not assert her right of dower to any portion of her husband’s estate outside of that conveyed to her. The law has prescribed a particular form by which a married woman must relinquish her right of dower. See Townsend v. Brown, 16 S. C. 92. But since the constitution of 1868, and the laws passed thereunder, giving a married woman the right to contract as if she were a feme sole, we suppose that a married woman may so covenant not to claim dower, as to make it binding upon her by way of estoppel. But we would say that the covenant of a married woman, to have that eifect in relation to an inchoate right of dower, future and contingent in character, should be entirely free from doubt, clear, positive and express in its terms. The words of Mrs. Shelton’s covenant are “ in lieu and in consideration of all claims and demands upon the said Marshall Shelton, or his estate, and hereby relinquish all further claims upon him for support or otherwise.” It is true these are broad and sweeping terms, but the very peculiar right of dower in the future was not expressly mentioned, and in giving construction to the obligation, it should not be overlooked that the parties were making provision for the wife about to separate from her husband, and the subject naturally uppermost in tbeir minds was tbe responsibility of the husband during his life to furnish suitable support and maintenance for his wife.

We do not see why the demandant may not maintain a separate action against one of the devisees without making the others parties. As we understand it, the testator himself made the division of the lands in his will, and gave a particular parcel described by metes and bounds to each one. The will is the title whether the party is in actual possession or not. The demandant has the right not to enforce part of her claim, if she chooses to do so. She may not intend to claim dower in the other parcels. We suppose, however, that she is not asking the dower of the whole lands out of one particular subdivision, but only the dower in that particular parcel belonging to the defendant in the proceeding.

The judgment of this court is that the judgment of the Circuit Court be affirmed.