Within one year from the decease of Vincent, the tenant paid the trustee the sum of five hundred and fifty dollars, pursuant to the ante-nuptial contract, which was also accepted by the trustee and tendered to the demandant. Both sums, so tendered to the demandant, and not accepted by her, have been specially deposited in bank.
No reference was particularly made in the will of Isaac Vincent to the ante-nuptial settlement, but a general deduction was therein given for the payment of debts and the performance of obligations.
At common law, a jointure made to a wife before or after marriage was not bar to her dower. By the statute of 27 Henry 8, c. 10, § 6, which had always been in force here, before our revised statutes, no jointure is a bar of dower, unless it be a freehold estate in lands, tenements, or hereditaments, for the life of the wife at least, and which is to commence and take effect, in possession or profit, immediately on the husband's death. The demandant's action, therefore, would not be barred by the marriage settlement, either at common law, or by the statute of 27 Henry 8, c. 10. The defense to the action, therefore, rests wholly on the Revised Statutes, c. 60, §§ 8, 9. The eighth section of that chapter is taken mostly from the statute of 27 Henry 8, c. 10. The provision as to the assent of the wife, and the mode of signifying her assent when she is under age, is adopted from the revised code of New York. The ninth section is also adopted from the New York Code. By this latter section it is provided, that any pecuniary provision that may be made for the benefit of the intended wife, and in bar of her dower, shall, if assented to by her, as provided in the preceding section, bar her right of dower in all the lands of her husband. In regard to this section, the commissioners for revising the statutes say: "The ancient distinction between real and personal estates is not much regarded by our present laws and usages as it will often be found more convenient, and probably quite as secure for the widow, to have her income payable out of public stocks, or other personal estate, as to have it depend on the rents of real estate." The only question in the present case, therefore, is whether by the ante-nuptial contract any pecuniary provision was made for the benefit of the demandant, the intended wife, in lieu of dower, and assented to by her in the manner provided by the statute. If such provision was made and assented to then, by force of the statute, it bars her right of dower, and she cannot maintain this action. If no such provision was made and accepted, then, of course, she is entitled to her dower, and this action is well brought.
On the part of the demandant, it is maintained, that no such provision was in fact made; that by the marriage contract it was optional, on the part of the husband whether he would pay or secure to the demandant the sums of money mentioned; that he was under no absolute obligation to do so, and in fact did not cause the sum of money mentioned to be paid or secured by his last will or otherwise, according to the provisions of the marriage settlement; and, therefore, that the demandant is not barred of her dower, which could only be effected by actually paying and securing the money, as provided in the marriage contract.
These positions, on the part of the demandant, if well sustained in fact, would no doubt establish her claim. But the facts by no means warrant or sustain these positions. By the marriage settlement, the husband had no option or election, whether he would or would not pay and secure the sums stipulated. He absolutely and unconditionally covenanted with the trustee, that he would by his last will or otherwise cause to be paid and secured, for the intended wife, the sums stipulated. The demandant expressly assented, that such sums being paid and secured, should be in bar of her dower. The husband covenanted, that he would by his last will or otherwise cause the money to be paid and secured. He made no express or particular provision by his will. But it was not necessary that provision should be made by will. Any other mode was just as effectual. All that this marriage contract required, and all that the statute requires, is, that the pecuniary provision, which the intended wife assents to instead of dower, should be actually and effectually secured to her. In the present instance, the indenture, constituting the marriage contract, was of itself a complete provision within the statute, and clearly fulfilled and accomplished the covenants on the part of the husband. This indenture absolutely bound the husband and his estate, and could be fully enforced against the latter in the hands of his executor. As there was ample estate, the husband did, therefore, in fulfillment of his covenant to cause the money to be paid and secured by his will or otherwise, cause it actually to be done by this indenture itself. In fact, the executor, admitting his liability, has fulfilled the covenant of the husband, to the letter, by paying and securing to the trustee, for the benefit of the wife, the sums which she assented to take in lieu of dower. The case, therefore, is clearly within the statute and the demandant's claim of dower is barred by the pecuniary provision made for her benefit, and assented to by her; and, consequently, according to the agreement of the parties, a nonsuit must be entered.1
(c.) Alienage of wife.
The Chancellor in
20 Wendell (N. Y.), 338. - 1838.
I have no doubt upon the question, as to the regularity and validity of the naturalization of the defendant in error in 1829. The fact that she was then a feme covert was no objection, as neither married women or infants are excluded from/the benefit of the acts of Congress on this subject. The fact that the statute makes the naturalization of the father, in certain castas, enure to the benefit of his infant children, does not preclude infants themselves from applying whenever it may be necessary; and as the general language of the naturalization acts include all free white persons, femes covert and infants, if they have sufficient capacity to understand their rights and the nature and obligation of an oath, may be naturalized.