Pinkham v. Pinkham

• Decision Date: 23 February 1901
• Citation: 95 Me. 71,49 A. 48
• Parties: PINKHAM et al. v. PINKHAM.
• Court: Maine Supreme Court

49 A. 48

95 Me. 71

PINKHAM et al.

v. PINKHAM.

Supreme Judicial Court of Maine.

Feb. 23, 1901.

(Official.)

Report from supreme Judicial court, Kennebec county.

Action by John E. Pinkham and others against Frances O. Pinkham. Case reported, and judgment for demandants.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

F. J. C. Little, for plaintiffs.

H. M. Heath and C. L. Andrews, for defendant.

SAVAGE, J. In this writ of entry the demandants are the two sons of Elisha F. Pinkham, who died seised 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 seised or possessed, and of which he or she may die seised 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 canceling 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, an 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's 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 Me. 63. If such power now exists, it must be by reason of some enabling statute. Haggett v. Hurley, 91 Me. 542, 40 Atl. 561, 41 L. R. A. 362. 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 devest 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...