Wentworth v. Wentworth

• Decision Date: 04 March 1879
• Citation: 69 Me. 247
• Parties: MARIA J. WENTWORTH v. ARTHUR F. WENTWORTH ARTHUR F. WENTWORTH, appellant, v. MARIA J. WENTWORTH.
• Court: Maine Supreme Court

69 Me. 247

MARIA J. WENTWORTH v. ARTHUR F. WENTWORTH

ARTHUR F. WENTWORTH, appellant, v. MARIA J. WENTWORTH.

Supreme Judicial Court of Maine.

March 4, 1879

ON REPORT.

The first case is an action of dower; the second an appeal from an allowance made by the judge of probate to the appellee, as the widow of Asa Wentworth.

The two cases were tried together. During the progress of the trials Arthur F. Wentworth offered in evidence paper " A," and contended that it would bar the claims for dower and allowance. The presiding justice ruled, pro forma, that said instrument would not bar Mrs. Wentworth of her claim for dower or allowance. Whereupon, by agreement, the cases were withdrawn from the jury, for the law court to determine, before settling any other questions in the cases whether the paper, if executed freely and understandingly would bar the claim of Mrs. Wentworth for dower and allowance, or either. Upon reception of the opinion the cases to stand for trial upon such questions as either party may raise.

[Paper " A." ] " Know all men by these presents, That I, Asa Wentworth of Saco, in the county of York and state of Maine, and Maria J. Brown of Portland, in the county of Cumberland and state of Maine, single woman, whereas a marriage is soon intended to be had and solemnized between the said Asa Wentworth and the said Maria J. Brown, that if a marriage shall be had and solemnized, it is agreed between the said Asa Wentworth and the said Maria J. Brown, that the said Wentworth, his heirs, executors, administrators and assigns, shall not, and will not in any event, take, claim, control or intermeddle with any of the property which now is of the said Maria J. Brown, or which may hereafter be derived in her right by inheritance, devise, donation, purchase or otherwise, nor with the profit, interest or income thereof. And that the said Maria J. Brown, her heirs, executors, administrators or assigns, shall not, and will not in any event, take, control, claim, hold or intermeddle with any of the real estate, personal property, or any property whatever, which now is of the said Asa Wentworth, or which may hereafter be derived in his right by inheritance, devise, donation, purchase or otherwise, nor with the profit, rent or interest thereof, or income, and we hereby intend to bar each other of all rights, title and interest which we might otherwise have in each other's estate by reason of the aforesaid marriage.

In witness whereof, I, the said Asa Wentworth, and Maria J. Brown, have hereunto set our hands and seals this fourth day of February, A. D. 1867. (Signed) Asa Wentworth. (seal). Maria J. Brown. (seal).

Signed, sealed and delivered, and executed in presence of, and the word " " control" and " purchase" interlined before signing and sealing, Jane Chase, F. W. Guptill."

W. J. Copeland, H. H. Burbank & J. S. Derby, for the defendant.

I. It has long been settled that antenuptial contracts are an equitable bar to dower, and will be enforced in chancery agreeably to their intent. 2 Kent Com. 172. 2 Scrib. on Dow. 390. Stilley v. Folger, 14 Ohio 610. Murphy v. Murphy, 12 Ohio St. 407. Andrews v. Andrews, 8 Conn. 79. Selleck v. Selleck, 8 Conn. 85. Cauley v. Lawson, 5 Jones Eq. 132. Geltzer v. Geltzer, 1 Bailey's Eq. 387. Logan v. Phillips, 18 Mo. 22. Johnson v. Johnson, 30 Mo. 72. Miller v. Goodwin, 8 Gray 544.

II. R. S., c. 61, § 6, extends the common law so far as to make such contracts a bar at law.

The statutes of Massachusetts, (Gen'l Stats., c. 108, § 27) similar to, though not so comprehensive in its terms as our own, has been held to bar dower. Sullings v. Richmond, 5 Allen 187. See notes on Gen. Stat. 268.

III. Marriage and the mutuality of the release disclose a sufficient consideration without requiring us to resort to extrinsic evidence. 2 Kent Com. 173. Schouler's Dom. Rel. 263. Andrews v. Andrews, 8 Conn. 84. Vance v. Vance, 21 Me. 370. Reade v. Livingston, 3 Johns. Ch. 481. Jacobs v. Jacobs, 42 Iowa 600. Maguiac v. Thompson, 7 Peters 348. Neves v. Scott, 9 Howard, 196.

IV. R. S., c. 61, § 6, like the Stat. of Mass., is additional to, and independent of, the settlement by jointure and the pecuniary provision assented to in lieu of dower, and empowers the parties to contract that the property of " either shall be held by them according to its stipulations." Jenkins v. Holt, 109 Mass. 262.

If a pecuniary consideration in addition to the consummation of the marriage is required, the contract falls within R. S., c. 103, § 8, and the present statute is a nullity.

V. Equity will enforce such a contract as this in bar of allowance. Tarbell v. Tarbell, 10 Allen 278. Buttman v. Porter, 100 Mass. 337. Jenkins v. Holt, 109 Mass. 261.

VI. A fair construction of our statutes, making it at law " a bar to all rights," will include allowance as well as dower.

R. P. Tapley, for the plaintiff.

I. The instrument does not operate as a relinquishment of dower. Vance v. Vance, 21 Me. 364.

II. The covenants cannot operate as estoppel. Gibson v. Gibson, 15 Mass. 106. Hastings v. Dickinson, 7 Mass. 153. 5 Allen 187.

Not lawfully barred. R. S., c. 103, §§ 1, 6-10.

The provision under which this instrument releases dower is found in chapter on Married Women, first enacted, 1857.

It is not a " marriage settlement," which has a legal, technical signification. It is not executory. Some title passes. 2 Bouv. L. Dict. 2 Whart. Lex. title Marriage Settlement. Burritt's L. Dict., same title.

The agreement in terms does not extend beyond married life.

Heirs of both excluded.

The last claim adds nothing in effect.

There is no consideration. 3 Redf. Wills, (2 ed.) 381. 4. Kent Com. 56. McCosta v. Tiller, 2 Paige 511. Power v. Sheel, 1 Moll. 296.

The allowance is discretionary, and is no right, title or interest, which alone are within the terms of the agreement.

E. Eastman, on same side, cited French v. Peters, 33 Me. 396. Lakin v. Lakin, 2 Allen 45. Stat. 27 Hen. VIII, c. 10. 2 Steph. Com. 307. 2 Kent Com. 172-178. Atherly Mar. Set. 92. Bubier v. Roberts, 19 Me. 460. O'Brion v. Ellis, 15 Me. 125. Stevens v. Owen, 25 Me. 94. Stearns Real Act. 239. Lufkin v. Curtis, 13 Mass. 223. Leavitt v. Lamprey, 13 Pick. 382. Hall v. Savage, 4 Mass. 293.

No bar by estoppel. Vance v. Vance, 21 Me. 364, 371. McGrachen v. Wright, 14 Johns. 193. Gibson v. Gibson, 15 Mass. 106. Klines' Est., 64 Pa.St. 124. Garrison v. Grogan, 48 Mo. 302. Curry v. Curry, 17 N.Y.S. C. 366. 4 Kent Com. 56. Gould v. Vomack, 2 Ala. 83. Stilley v. Folger, 14 Ohio 610. 1 R. S. of N. Y. 741, §§ 8, 9, 11.

On allowance. 32 Me. 576. Reaffirmed in Kersey v. Bailey, 52 Me. 198.

VIRGIN J.

The first question to be determined is: Does the instrument of February 4, 1867, if executed freely and understandingly, bar the plaintiff's claim of dower in the lands of her late husband?

The decision of this question depends upon the construction to be given to R. S., c. 61, § 6, and upon that of the instrument itself.

This provision of the statute first appeared in the revision of 1857, in accordance with the recommendation of the distinguished revision commissioner, Shepley, late C. J. Com. Rep. 7. The material part of the section provides that, parties about entering upon the relation of husband and wife, " may, by a marriage settlement, executed in the presence of two witnesses before marriage, determine what rights each shall have in the other's estate during marriage, and after its dissolution by death; and may bar each other of all rights in their respective estates not so secured to them."

Whatever may have been the great leading object of marriage settlements, when, under the common law, a married woman's entity was so merged, and her property so essentially lost by marriage, now, since the statute has placed her more nearly on an equal footing with her husband, one of the principal objects of such antenuptial proceedings has become obsolete, and the provisions formerly so common have disappeared. For now, in this state, a married woman is no longer under the necessity of having property settled upon her, since she may " " acquire," " own," " manage," " convey" and " devise" any kind of property, and make any lawful contract, and is not deprived of any part of it by marriage, nor does the husband thereby acquire any right to any of his wife's property. R. S., c. 61, §§ 1, 2, 4. Still there are some rights which each has in the property of the other when deceased, (R. S., c. 103, § 15) which need not be enumerated here, together with the right of dower as provided in R. S., c. 103, § 1.

The rules governing the status of marriage are fixed and cannot be changed by parties to suit themselves. The terms of the conjugal relation are too essential to the public weal to be tampered with. But, before marriage, parties have always had the authority, within certain well defined limits, by special stipulations fairly and understandingly entered into inter sese, to vary the property interests which each, by virtue of the marriage, acquires in the other's estate. 1 Bish. Mar. W., §§ 418, 425, 427, and cases cited in notes. Schoul. Dom. R. 262. Almost any bona fide antenuptial contract made to secure the wife, either in the enjoyment of her own property or a portion of that of her husband, either during coverture or after his death, will be enforced in equity. Schoul. Dom. R. 263. 1 Bish. Mar. W. § 423, notes. Jacobs v. Jacobs, 42 Iowa 600. Andrews v. Andrews, 8 Conn. 79, 85. Naill v Maurer, 25 Md. 532, and cases. The principle underlying the cases is that the parties have substituted their own agreement for the rule which prevails in the absence of any agreement. 1 Bish. Mar. W. § 627. Same as one may substitute a devise for the rule of...