A contract for the sale of land belonging to the husband, made by him before marriage, takes precedence of the dower rights, and consequently the widow cannot claim dower as against the purchaser.16

Sec. 224. Release of dower

At common law the widow could, after the husband's death, release her dower right,17 but the wife of a living husband had no such right, the only mode in which a married woman could convey or extinguish any interest belonging to her being by joinder with her husband in a fine or recovery.18 There are in some states statutes authorizloff v. May, 151 Iowa, 441, Ann Cas. 1913A, 341, 131 N. W. 647; Dayton v. Corser, 51 Minn. 406, 18 L. R. A. 80, 53 N. W. 717; Holt v. Hanley, 245 Mo. 352, 149 S. W. 1; Manuel v. Turner, 36 Mont. 512, 93 Pac. 808; Butler v. Fitzgerald, 43 Neb. 192, 27 L. R. A. 252, 47 Am. St. Rep. 741, 61 N. W. 640; Taylor v. Fowler, 18 Ohio, 567, 51 Am. Dec. 469; House v. Fall, 22 Ore. 303, 29 Pac. 890; Hall v. Hall, 45 S. C. 166, 22 S. E. 818; Combs v. Young's Heirs, 4 Yerg. (Tenn.) 218, 26 Am. Dec. 225.

14. See Sturdevant v. Norris, 30 Iowa, 65. In Pennsylvania such appears to be the law apart from statute. Directors of Poor v. Royer, 43 Pa. 146; 1 Scribner, Dower, (2nd Ed.) 625.

15. See Den d. Davidson v. Frew, 14 N. C. 3, 22 Am. Dec. 708, and note; Rose v. Rose, 6 Heisk (Tenn.) 533.

16. 1 Scribner, Dower, 410; Rain v. Roper, 15 Fla., 121; Aaron v. Bavne. 28 Ga. 107; Stevens -Smith, 4 J. J. Marsh (Ky.) 64, 20 Am. Dec. 205; Mineral Development Co. v. Hall, (Ky. L. Rep.) 115 S. W. 230; Dooley v. Merrill.

216 Mass. 500, 104 N. E. 345; In re Pilling, 97 Mich. 375, 56 N. W. 765; Hunkins v. Hunkins, 65 N. H. 95. 18 Atl. 655; Melton v. Lane, 29 Okla. 383, 118 Pac. 141; Chapman v. Chapman's Trustee, 92 Va. 537, 53 Am. St. Rep. 823, 24 S. E. 225.

17. Park, Dower, 213, 1 Roper Husband & Wife (Jacob's Ed) 563.

18. Post, this section, note 40.

The release by the wife of her inchoate dower,19 and her right to release it by joining in her husband's conveyance is generally recognized.20

A release by the wife is usually ineffective unless the husband joins therein, sometimes by express provision of statute, and sometimes by reason of the general rule that a married woman cannot dispose of interests in land without the joinder of her husband.21 And the fact that the release is made to one to whom the husband has previously conveyed the land does not dispense with the necessity of his joinder.22 If the widow marries again, her second husband must join in her release of her dower right in her first husband's land.23

19. 1 Stimson's Am. St. Law, Sec. 3245.

A wife who is a minor can release her dower only under statutory authority; Applegate v. Conner, 93 Ind. 185; Oldham v. Sale, 1 B. Mon. (Ky.) 76; Adams v. Palmer, 51 Me. 480; Glenn v. Clark, 53 Md. 580; Markham v. Merrett, 7 How. (Miss.) 437, 40 Am. Dec. 76; Sanford v. McLean, 3 Paige (N. Y.) 117, 23 Am. Dec. 773; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285. One who is insane cannot release her dower rights (Ex parte McElwain, 29 111. 442), and it is questionable whether her guardian has power so to do (Eslava v. Lepretre, 21 Ala. 504, 529, 56 Am. Dec. 266). In some states, however, the statute provides for the giving of such release on application to the court. See 1 Sharswood & B. Lead. Cas. Real Prop. 377.

20. Post, this section, notes 40-48.

21. Knox v. Brady, 74 111. 476; Moore v. Tisdale, 5 B. Mon. (Ky).

352; French v. Peters, 33 Me. 396; Page v. Page, 6 Cush. Mass.) 196; Marvin v. Smith, 46 N. Y. 571. The statute sometimes expressly allows a release without -he husband's joinder. 1 Stimson's Am. St. Law, Sec. 3245 (2); 2 Scribner, Dower, 293.

As to the rights of a purchaser from the husband when the wife refuses to release dower, See notes in 10 Columbia Law Rev. at p. 573, 25 Harv. Law Rev. at p. 731, 28 Id. at p. 717.

22. Powell v. Monson & Brim-held Mfg. Co., 3 Mason, 347, Fed. Cas. No. 11,356; Page v. Page, 6 Cush. (Mass.) 196; Shaw v. Rusk, 14 Me. 432. Contra, Shepherd v. Howard, 2 N. H. 507. Fowler v. Chadina, 134 Iowa, 210, 111 N. W. 808. See Knox v. Brady, 74 111. 476; Syck v. Hellier, 140 Ky. 388, 131 S. W. 30; Dooley v. Greening, 201 Mo. 343, 100 S. W. 43 (husband insane).

23. Osborn v. Horine, 19 111. 124.

The release of dower can usually be made only to one who has, or is at the time given, an estate in the land, otherwise, the release, so called, would he in legal effect a mere transfer of the dower right, and such a transfer is not permissible.24 It has been decided, however, in one state, that a release may be made to one who has conveyed away the property with covenant of warranty, he having a substantial interest in the extinguishment of the dower claim,25 and a release to one having only an equitable estate has been there upheld.26 In so far as the power of the wife to release her inchoate dower can be regarded as based on statute, the question of the person to whom it can be released is obviously one of the construction of the statute authorizing such a release.27 In so far as it is not to be regarded as controlled by statute, it seems a reasonable view that the release may be made to any person who has an estate in the land, provided another is not in adverse possession. But at common law a release made in extinguishment of a right of a freehold character, and a right of inchoate dower is such, could be made only to one having a freehold estate in the land.28

The release of dower, since it involves an interest in land, is within the Statute of Frauds, and must be by an instrument in writing.29

In some states it is held that a release of dower can be taken advantage of only by the person to whom it is made, or those who may claim under such person, on the theory, generally, that it operates by estoppel only, one authorizing contracts between husband and wife.39 ation of other provisions made by him for her.33 She may, after the husband's death, elect whether to abide by such release or agreement, and the statutes frequently so provide.34 She cannot have dower and also retain what she received as a consideration for the release and agreement,35 and she must, if she intends to claim dower, return the consideration received within a reasonable time after the husband's death.36 Occasionally, however, a release of the dower right in favor of the husband has been regarded as binding on the wife by reason of the fact that it was part of a separation agreement,37 and in two or three states such a release has been upheld, though not in a separation agreement, by reason of a local statute authorizing a conveyance by a married woman as if single,38 or and consequently enures only to the benefit of parties and privies.30 In other stales, the release, to the extent to which it is intended to operate, extinguishes the right of dower in favor of all persons whomsoever.31 The former view appears to accord with the decisions, hereafter referred to, that if a conveyance by the husband, in which the wife joins to release dower, is set a-side, the dower right is restored,32 and it appears moreover to accord with what may be presumed to be the intention of the wife in executing the release, to benefit the releasee and those claiming under him exclusively.32a