Lucy Shaw vs. Henry Russ, 14 Me. 432

After a continuance, the opinion of the Court was drawn up by Weston C. J. The instrument, upon which the defendant relies, to bar the demandant of her dower, was executed in 1817 ; whether therefore it is to have this effect or not, will depend upon the laws of Massachusetts at that time. By an ordinance of the colonial government in 1641, Anc.

Charters, 99, a widow was to be endowed, who had not been provided for by way of jointure, notwithstanding any thing done or suffered by the husband, otherwise than by some act or consent of the wife, signified by writing under her hand, and acknowledged before some magistrate, or others authorized thereunto. Whether this was done by joining with the husband, or whether it might be done subsequently, by a separate instrument, does not appear. The late Chief Justice Parsons, in the case of Fowler v. Shearer, 7 Mass.

R. 14, says, that this ordinance having expired with the first charter, it was provided by the provincial legislature, by statute, 9 Will. 3, ch. 7, that the widow should have her dower in land sold or mortgaged, who had not joined with her husband in such sale or mortgage. And by the statute, directing ¿he mode of transferring real estates by deed, statute of 1783, ch. 37, dower is saved to the widow, unless she had joined with her husband in the conveyance.

In the case before cited, the Chief Justice states, “ that the usual mode by which a wife is joined, is by introducing her in the close of the deed, as expressly relinquishing all claim to dower in the premises sold, and by her executing the deed with her husband. And it has been sometimes done by her separate deed, subsequent to her husband’s sale, in which the sale is recited as a consideration, on which she relinquishes her claim to dower.

The deed of a feme covert, thus executed to bar her claim to dower, is not voidable, but will bind her as to such claim.” He points out the modes, in which the deed of the wife, joining with her husband, may be effectual for the relinquishment of dower. lilis lie says may be done, by uniting in the original conveyance, or subsequently by her separate deed.

It may deserve consideration, whether by her separate deed, he is to be understood to mean any thing more, than an instrument separate and distinct from the original conveyance, without repeating, that she thus joined with her husband in executing such separate deed; as he was professedly stating in what manner the joining with her husband, authorized by statute, was executed. The dictum, in the connection in which it stands, is not altogether free from obscurity.

But if by her separate deed, he means an instrument, in which her husband does not join, which, but for what precedes, may be the more obvious construction, it does not appear to us to be warranted by the provincial statute, to which he adverts, or by that of the Common-wealth, which is substantially to the same effect. The deed of a feme covert is, by the common law, absolutely void. Her deed, relinquishing her dower, when she joins with her husband, is an exception authorized by statute.

Another exception, established by long uniform usage is, where she unites with her husband, in conveying by deed any interest whatever, which she may have in real estate. And the validity of this usage, has been repeatedly recognized by direct judicial decisions. But that a feme covert may relinquish her right of dower, by her separate deed, has never been directly decided in Massachusetts or in this State. As to a usage to this effect, we are not aware that an instance has been presented to the consideration of the Court there ; and this is the first attempt of the kind, which has come to our knowledge here.

The ground upon which it is entitled to be recognized as an exception to the well settled principle of the common law, is in our judgment altogether too feeble to be sustained. In Stearns v. Swift, 8 Pick. 532, where the case of Fowler v. Shearer, is adverted to, the husband joined with the wife in a separate deed, relinquishing her dower. In Powell et ux. v. The Monson & Brimfield Man.

Co., 3 Mason, 347, Story J. repudiates the dictum of Chief Justice Parsons, and insists, that if it is lo be regarded as law, it is to be adopted with the limitation therein expressed, namely, that in the separate deed of the feme covert, the sale made by her husband, must be recited as a consideration, on which she relinquishes her claim to dower. The point decided in Rowe v. Hamilton, 3 Greenl. 63, was, that a feme covert cannot bar her right of dower, by any release made to the husband during the coverture. And Mellen C. J. understands, that from the opinion in Fowler v.

Shearer, she may release her dower, by her separate deed to the grantee of her husband, when made “ in consideration of the husband’s conveyance.” The instrument, upon which the tenant relies, has no such consideration, but one altogether distinct and independent; so that it is not sustained by the case of Fowler v. Shearer. In our opinion, the instrument purporting to'be the deed of the demandant to the tenant, while she was a feme covert, is void at law; and that she is, notwithstanding, dowable in the demanded premises.

How far, since the date of that instrument, the law has been changed by our own statute, we are not called upon to determine.