Hannah Learned versus Pliny Cutler, 18 Pick. 9

Wilde J. delivered the opinion of the Court. This is a writ of dower, and it is admitted by the facts agreed, that the demandant is entitled to recover unless she is barred by the deed made by her jointly with her late husband, to the city of Boston, under which the tenant claims. The case, therefore, must turn upon the construction to be given to that deed. The general question, as to what acts of the wife shall be sufficient by our laws to bar her claim of dower, has been frequently considered by this Court, and is well settled.

She must not only join with her husband in a deed of conveyance of the land by executing the deed, the conveyance being made by him, but the deed must contain apt words of grant or release on her part ; and if it does, it will bar her right of dower, although she had no vested title in the land at the time of the conveyance, and no title passed from her to the grantee. The grant or release of the wife operates by way of estoppel or ex-tinguishment of her right, so as to bar any future claim of dower which may accrue to her after the death of her husband.

The usual form is for the wife simply to relinquish or release her right of dower ; but words of grant are equally efficacious and proper to bar her right ; for in neither case does her deed pass any title to the estate. So it is not necessary that she should release or grant her right of dower eo nomine, any other words showing an intention on her part to relinquish her dower, will be sufficient. And if she joins her husband in the sale, and undertakes to convey the land jointly with him, this generally would be a sufficient indication of her intention to exclude herself from any claim of dower.

By joining in the words of grcnt she must be understood to give or intend to give all the right and title she was capable of giving, whether by way of passing an estate or extinguishing or barring a right depending on a contingency. It is, therefore, no objection, that the wife has nothing which can pass by grant ; for if it can operate in any other way, so as to confirm the title of the grantee, it will be sufficient.

If it were otherwise, an express release or conveyance of the right of dower would have no legal operation ; for the wife cannot convey or release any right which she does not possess at the time of the conveyance or release. But by joining her husband in the sale, she bars her right of dower by the plain construction of the St. 1783, c. 37, § 5, by which it is provided, that the widow of any vendor shall be entitled to dower unless she has joined her husband in the sale of the land, or has otherwise lawfully barred or excluded herself from her dower.

Now the wife cannot in any way more fully join her husband in a sale, than by joining in the words of grant ; and where she does thus join, she is clearly barred, unless there is some reservation in the deed, of her right of dower, or unless it appears from the language of the deed, that such reservation was intended to be made. Upon these principles, the construction of the deed in question appears very clear. The demandant joined her husband in the sale of the land in which she demands dower, and they expressly give, grant, sell and convey all their right, title and interest therein.

It makes no difference that the demandant had a title to a

part in her own right in fee ; the words of conveyance extend to the whole ; and it makes no difference, as has been already stated, that the wife had no vested right of dower in her husband’s share of the premises at the time of the conveyance ; so that the conveyance is as effectual to bar her dower, as it was to pass any vested rights she might then have in any part of the land. But it has been argued, that these general words are restrain ed and limited by the words afterwards introduced at the close of the deed.

The words are : “ In witness whereof we the said Samuel Learned and Hannah Learned, my wife, in token of our conveyance of all right, title and interest, whether in fee or in freehold, in the premises, have hereunto set our hands and seals,” &c. But we think it is manifest that this clause in the deed, so fa? from limiting and restricting the general words of grant, confirms their legal operation, and shows, that the deed was intended by the parties to operate so as to bar the husband’s right as tenant by the curtesy in his wife’s share, and to bar her right of dower in her husband’s share.

The word freehold can have no other meaning. Whether the husband had, at the time of the conveyance, a vested right of freehold in his wife’s share of the lands does not appear ; but if he had, the fact would riot vary the construction of this clause in the deed.

The husband and wife were seised in fee, in her right, of her share of the estate ; and that share would clearly pass by the general words of the deed, and by the husband’s covenants to that effect; so that the word freehold seems more particularly applicable to the wife’s contingent right of dower than to the husband’s right as tenant by the curtesy ; but in no respect can it be considered as limiting the general words of conveyance. Demandant nonsuit.