Logan, Appellant, vs. Phillips et al., Respondents, 18 Mo. 22

Scott, Judge, delivered the opinion of the court. 1. Under the statute concerning marriage contracts, it is not necessary that a nuptial agreement should be acknowledged or proved and recorded, in order to make it binding between the parties thereto. The object of recording such instruments is, to impart notice to purchasers and creditors, and if they are not affected by an omission to record them, those who form them cannot object to their validity, that they have not been acknowledged and recorded. Notwithstanding the generality of the first

section of the act, the sections which follow clearly indicate the purpose of the legislature in requiring marriage contracts to be recorded, and show that, as between the parties to them, they are binding, although they are not acknowledged or proved, and recorded. The justice of the peace who took the acknowledgment of the contract under consideration had no authority to do so, yet, as he was examined as a witness, his testimony clearly proved the execution of the instrument, and, as between the parties, that was all that was necessary to make it evidence. 2.

Two maxims of the common law rendered it impossible to bar a widow of her dower by any conveyance of lands, either before or during the marriage. The first of these maxims was, that no right could be released until it accrued ; the other was, that no right or title to an estate of freehold could be barred by a collateral satisfaction.

When the statute of uses, 27 Henry YHI. transferred the legal estate to those who were entitled to the use of the lands, all women then married, would have become dowable of such lands as had been held to the use of their husbands ; to prevent this, as well as for the future to make a provision, by which dower might be barred, which was a great hindrance to alienations in consequenee of the cumbrous process by which the relinquishment of the wife could only be obtained, the tenth

section of the statute, above referred to, was inserted, which established a mode by which the legal right to dower might be barred. In the construction of this section, it was held that, if the provision made for the wife be not a legal jointure within the act, she is not at law put to her election, but will be entitled to both provisions, that is, to her dower, and to that which was intended for a jointure.

This being the construction of the act in the courts of law, courts of equity deeming it unjust that widows should have both dower and the provision intended as a substitute for it, interfered and obliged the widow in every such case to make her election between that which was designed as a legal jointure and her legal right to dower. When the widow elected or was compelled to take the provison substituted for dower, it was called an equitable jointure, and this is the origin, it is believed, of the jurisdiction of courts of equity in matters of this kind. Lomax on Real Property, 122-3.

The widow was put to her election, as well where the jointure was made during cover-ture, as where it was made before, but nothing by way- of join-ture could be a legal bar to dower but that which was settled prior to the marriage. Under what circumstances a widow should be put to her election, where a provision has been made for her subsequently to the marriage, is a matter which has caused great litigation in the courts of equity in England.

Our code, by providing that, if any contract or agreement for join-ture be made after marriage, or be made before marriage and during infancy of the wife, the widow may, at her election, renounce her jointure and have dower, and that any real estate, devised to a wife, shall be in lieu of dower, unless it is otherwise declared by the testator in his will, has avoided many of the perplexing questions arising on this subject. The fourteenth

section of.the act concerning dower enacts, that when any deed, contract or agreement for jointure, in lieu of dower, shall, through, any default, fail to be a legal bar to dower, and the widow, availing herself of such default, shall demand her dower, then the estate and interest so conveyed to such widow, shall cease and determine. This controversy, growing out of a contract for jointure made by adults before marriage, it is maintained, that this provision has taken away all pretence for the interference of courts of equity in this matter, and that the only consideration which can arise is, whether the provision is such a one ■ as is contemplated by the twelfth

section of the act which defines what a jointure shall be, and if it is not such as is contemplated, then it fails and the wife is entitled to her dower at law. In a word, it is contended, that all the doctrine concerning equitable jointures or bars of dower, in cases like the present, has no longer any existence under our system of law. In Virginia and Ohio, provisions similar to the fourteenth

section of our dower law prevail, and notwithstanding it is maintained that equitable jointures still exist and will defeat the legal claim of dower. 1 Lomax, 122-3. Stilley v. Folger, 14 Ohio Rep. 610. Indeed the provision of our statute, relative to jointures, is so dissimilar to the tenth

section of the 27 Hen. VIII., in relation to the same subject, that it- cannot be a matter of easy discrimination, between alegal and equitable jointure, from.the adjudged cases. By the English statute, among other requisites, an estate, to bar dower, must be limited to the wife herself and not to any other person in trust for her ; the join-ture, too, could only be of real estate. Our statute allows a trust as well as personal estate, to constitute the provision which shall be a legal, bar of dower.

In the courts of equity in England, it would appear that the only consideration is, whether the provision made be equivalent to a legal jointure under the statute; if it be, the rule then is, to follow the law, in the substance, without regard to the form in which the object is sought to be effected. If the provision made be equal in value to what a court of law would admit, as a jointure, then it will he binding in equity. Clancy, 229.

When a contract was made by a woman o£ full age before marriage, by which, for a sufficient consideration, she relinquished her right of dower in her future husband’s real estate, it was sustained by courts of equity. Being sui juris, and free from the control of any one, it was not perceived why her contracts should not be binding as well as those of all other adults. The provision in the statute concerning jointures, was introduced to enable married-men to convey their estates freed from the incumbrance of dower, which was a great burden on alienations.

We have seen that our statute permits dower to be barred by a jointure of personal estate. It does not say, in terms, that such an estate may be in trust, but as marriage is by law a gift to the husband of all the personalty in possession of the wife, such estates would be extremely convenient in framing the settlements designed to bar the right of dower. 3. Influenced by the doctrine of courts of equity, in relation to this subject, and by the departure of our statute from the English law of jointures, we are warranted in indulging a liberal construction in support of settlements made as a substitute for dower.

Disregarding forms, the aim should be to protect the rights of dower, and if that object is attained by the agreement, the law is satisfied, without any nice discrimi-nations between legal and equitable jointures. By the marriage, all the personalty of Mrs. Logan was immediately vested in her husband, and the ante-nuptial contract impliedly created a trust, which secured it for her future use.

The contract conferred the entire property on the wife, and the provision allowing her to dispose of it by will was introduced in conformity to the requirement of the statute of wills, as otherwise being a married woman, during her coverture, she would have had no power of disposition. This power shows that the entire estate was in her. Judging from the estate of the deceased husband, as set forth in the petition, the provision made by the contract was, under the statute, a good and sufficient join-ture to bar the complainant’s right to dower.

The other judges concurring, the judgment of the count below will be affirmed.