William W. Fuller, Administrator, versus Alexander Wright et al., 18 Pick. 403

Shaw C. J. delivered the opinion of the Court. The question is, whether the inchoate right of dower was a claim or incumbrance, within the meaning of the defendants’ agreement, which the intestate was bound to extinguish, before he could claim the purchase money for the land. The Court are of opinion, that it was not. Whether under all circumstances an inchoate right of dower, where husband and wife are both living, shall be deemed an incumbrance, is a question which must depend upon the contract and the circumstances. It is true that it is no estate or interest, but only.a possibility.

But it is a possibility which may give the wife an estate, by the happening of a contingent event, the death of her husband, without any new act to be done, or new right to be acquired. Upon an executory contract, by which one, for a certain sum, should engage to transfer land, or procure for another a transfer of land, by a good and indefeasible title, free of all claims and incumbrances, it would be reasonable to consider it as the intent of the parties, that for the sum named, the covenantee should have a complete title, free of actually existing claims of dower.

But we think no general rule can be laid down, to determine absolutely whether such inchoate right of dower is an incumbrance ; it must depend on many and various circumstances and considerations. The question in this case is, whether it was intended that the payment of the purchase money should be suspended until the intestate should procure a release and extinguishment of his wife’s right of dower. The deed by which Messiter conveyed to the defendants had been already made, and the dower was not released.

If it was intended or expected that she should release it, the probability is, that it would have been done hen. Further, the consideration which they agreed to pay for the grantor’s interest in the land, was $ 1200, as recited in the deed, and that without the release of the right of dower. The stipulation in the contract was to pay $1200, in extinguishing incumbrances, and the balance to the grantor. It seems, therefore, they must have had in view incumbrances and liens which could be paid and extinguished by money, to be computed towards payment of the consideration.

It therefore could not include an inchoate right of dower. The effect of the construction contended for by the defendants would be, to suspend the payment of the consideration to the grantor during the joint lives of himself and his wife, which could not have been the intention of the parties. On the whole, we think it was the intention of the defendants to give $1200 for such a title as the intestate could make therein, without his wife’s joining to release her dower ; and the claims and incumbrances intended were the mortgages and attachments.

The circum stance that the husband so soon died, leaving his wife surviv ing, by which the amount of the right of dower was greatly enhanced, can make no difference ; the present question depends entirely on what the parties understood and intended at the time. On the other point, the Court are of opinion, that it is not competent for the defendants to set off their several individual claims upon the estate against the claim of the administrator against them jointly, but that the administrator has a right tc receive the balance, for the benefit of the creditors generally.