As stated ni a previous chapter,88 after the doctrine of uses was developed by the courts of equity, it became the very general practice to convey lands to uses. The courts, however, refused to recognize any right of dower in land conveyed to the use of the husband, since he had no seisin thereof, and consequently other provisions had to be made for the wife in case of the husband's death. It then became usual for the parents of the bride to require the intended husband to have land conveyed to him and his wife, for life or in tail, in joint tenancy or "jointure," the wife thereby becoming entitled to an estate for life, at least, if she survived him. Upon the passage of the Statute of Uses, since this transferred for debts, see McFaddin v. Fer-rell, 128 111. App. 167; Gibson v. McCormick, 10 Gill & J. (Md.) 65; Baxter v. Bowyer, 19 Ohio St. 490; Gaw v. Huffman, 12 Gratt. (Va.) 628. In Michigan the widow stands on the same footing as a creditor, and shares pro rata with the creditors. Tracy v. Murray, 44 Mich. 109, 6 N. W. 224.

85. Steele v. Steele's Adm'r, 64 Ala. 38 Am. Rep. 15; Lord v. Lord, 23 Conn. 327; Isenthart v. Brown, 1 Edw. Ch. (N. Y.) 441; Taylor's Estate, 175 Pa. St. 60, bind herself by contract, it. was held that an equitable jointure was sufficient to bar dower, if the provision was competent and certain, and was assented to by her parent and guardian.92

34 Atl. 307; Gaw v. Huffman, 12 Grat. (Va.) 628.

86. Steele v. Steele's Adm'r, 64 Ala. 438, 38 Am. Rep. 15; Security Co. v. Bryant, 52 Conn, 311, 52 Am. Rep. 599; Moore v. Alden, 80 Me. 301, 6 Am. St. Rep. 203; Borden v. Jenks, 140 Mass. 562, 54 Am. Rep. 507, 5 N. E. 623; In re Gotzian, 34 Minn. 159, 57 Am. Rep. 43, 24 N. W. 920; Roper v. Roper, 3 Ch. Div. 714.

87. 2 Scribner, Dower (2d Ed.) 525; 1 Stimson's Am. St. Law, Sec. 3248.

88. See ante, Sec. 96.

Provisions for the wife which did not comply with all the requirements named above as essential to a jointure under the Statute of Uses were, however, recognized in equity as sufficient to bar dower, if assented to by the intending wife before marriage. Such a provision was called an "equitable jointure," and differed primarily from a legal jointure, in that it rested on a contract by the wife to relinquish dower, in consideration of such provision, which equity would enforce.91 In the case of an infant, though she cannot but such a contract seems to differ from an "equitable jointure," if it differs at all, merely in the fact that, by reason of the statute, it is recognized at law as well as in equity. A statutory provision that dower may be barred by jointure has been regarded as not precluding its bar by any form of antenuptial contract.97

89. Co. Litt. 36b; 2 Blackst. Comm. 137; 1 Cruise, Dig. tit, 7. c 1, Sec.Sec. 22, 33; 4 Kent, Comm. 54; Vernon's Case, 4 Coke, 1.

90. Earl of Buckinghamshire v. Drury, 3 Brown, Parl, Cas. 492. 2 Eden, 60, Wilmot's Notes; Drury v. Drury, 2 Eden, 39; McCartee v. Teller, 2 Paige (N. Y.) 511, 8 Wend. (N. Y.) 267.

91. 2 Scribner, Dower, 408 et seq.; Williams, Real Prop. 325; Caruthers v. Carathers, 4 Brown, Ch. 500;Drury v. Drury, 2 Eden, 39. See Andrews v. Andrews, 8 Conn. 79; O'Brien v. Elliot, 15 Me. 125. 32 Am. Dec. 137; Logan v. Phillipps, 18 Mo. 22; Stilley v. Folger, 14 Ohio, 610.

- In the United States. In this country, while in some cases the existence of the requirements of a legal jointure, as recited above, have been recognized,93 the essentials of a jointure are usually determined by the statute of the particular state, and the statute, besides imposing other restrictions, ordinarily requires the wife's assent to the provision given her in lieu of dower, or, in the absence of such assent, gives her the right, after the husband's death, to elect between such provision and her dower.94 So, in a number of states, the statute provides that any pecuniary provision for the intended wife in lieu of dower will, if assented to by her, exclude her right thereto.95 Frequently, in the decisions, the term "jointure" is not used, it being merely said that the intending wife may release her dower right by a contract on a valuable and adequate consideration;96

92. Caruthers v. Caruthers, 4 Brown, Ch. 500; 4 Kent, Comm. 55. See McCartee v. Teller, 2 Paige (N. Y.) 511, 8 Wend. (N. Y.) 267; Levering v. Heighe, 3 Md. Ch. 365. Contra, Shaw v Boyd, 5 Serg. & R. (Pa.) 309, 9 Am. Dec. 368.

93. Grider v. Eubanks. 12 Bush (Ky.) 510; Vance v. Vance, 21 Me. 364; Graham v. Graham, 67 Hun (N. Y.) 329; Grogan v. Garrison, 27 Ohio St. 50.

94. See 1 Stimson's Am. St. Law, Sec. 3241; 1 Sharswood & B. Lead. Cas. Real Prop. 356; 2 Scrib-ner, Dower (2d Ed.) 407.

95. 1 Scribner, Dower (2d Ed.) 409; 1 Stimson's Am. St. Law, Sec. 3242.

96. Culberson v. Culberson, 37 Ga. 296; Worrell v. Forsyth, 141 111. 22, 30 N. E. 673; Forwood v. Forwood, 86 Ky. 114, 5 S. W. 361; Naill v. Maurer, 25 Md 532; Jenkins v. Holt, 109 Mass. 261; Pierce v. Pierce, 71 N. Y. 154, 27 Am. Rep. 22; Graham v. Graham, 67 Hun, (N. Y.) 329, 22 N. Y. Supp. 299; Stilley v. Folger, 14 Ohio, 610, 650; Findley's Ex'rs v. Findley, 11 Grat. (Va.) 434; Hinkle v. Hinkle, 34 W. Va. 142, 11 S. E. 993; Chaffee v. Chaffee, 70 Vt. 231, 40 Atl. 247. An agreement by the husband relinquishing his rights in his wife's property after her death is, it seems, a sufficient consideration for her contract releasing lower, if she has property. Andrews v.

- Failure or insufficiency of provision for wife.

In case the provision by way of jointure proves ineffectual, as when the widow is evicted by paramount title, she is then entitled to her dower pro tanto,98 and the state statutes frequently contain provisions to this effect.99

It has generally been held in England that the inadequacy of an equitable jointure settled on an adult woman as a substitute for dower does not affect its sufficiency as a bar, she being bound by her contract in this as in any other case.1 In this country, a somewhat different view has usually been taken, a man being regarded as under an obligation to deal with the utmost candor with one whom he is about to marry,2 and the gross inadequacy of the consideration received by the woman in return for the relinquishment of her rights being regarded as creating a presumption of a lack of such candor on his part, such as to justify the avoidance of the transaction.3 Occasionally it has been said that an arrangement by which the widow will fail to receive a sufficient support is against public policy.4 The courts have, however, not infrequently, upheld an antenuptial contract by which the parties to the intended marriage mutually relinquish all rights in each other's property, without apparently any consideration of the comparative values of the rights relinquished.5

Andrews, 8 Conn. 79; Naill v.

Manrer, 25 Md. 53':; Cauley v. Lawson, 58 N. C. 132; Rieger v. Schaible, 81' Neb. 33, 17 L. R.

A. (N. S.) 866, 16 Ann. Cas. 700, 115 N. W. 560. And see Stilley v. Folger, 14 Ohio 610.

97. Barth v. Lines, 118 111. 374, 59 Am. Rep. 374, 7 N. E. 679; Kennedy v. Kennedy, 150 Ind. 636, 50 N. E. 756; Naill v. Maurer, 25 Md. 532; Hockenberry v. Donovan, 170 Mich. 370, 136 N. W. 389; Logan v. Phillips, 18 Mo. 22; Hannon v. Hannon, 46 Mont. 253, Ann. Cas. 1914B, 616, 127 Pac. 466; Stilley v. Folger, 14 Ohio, 610; Rieger v. Schaible, 81 Neb. 33, 17 L. R. A.

(N. S.) 866, 16 A. & E. Ann. Cas. 700, 115 N. W. 560.

98. 2 Scribner, Dower (2d Ed.) 132 et seq.; Drury v. Drury, 2 Eden, 39; Garrard v. Garrard, 7 Bush (Ky.) 436. It was so expressly provided in the Statute of Uses (27 Hen. VIII. c. 10, Sec. 7).

99. See 1 Stimson's Am. St. Law Sec. 3247; 1 Sharswood & B. Lead. Cas. Real Prop. 358..

1. Roper, Husband & Wife, 487 et seq.; 1 Cruise, Dig. tit. 7, c. 1, Sec. 27; Caruthers v. Caruthers. 4 Brown, Ch. 500; Dyke v. Rendall, 2 De Gex, M & G. 209.

2. Achilles v. Achilles, 151 111. 136, 37 N. E. 693; Rankin v. Schiereck, 1G6 Iowa, 10, 147 N. W. 180; In re Pulling, 93 Mich. 274, 52 N. W. 1116; Pierce v. Pierce. 71 N. Y. 154, 27 Am. Rep. 22; Stilley

Sec. 226 ]

Estates Arising From Marriage.

Occasionally the view has been taken that, in the absence of a showing of a contrary intention, any stipulation as to something to be done by the husband as a consideration for the relinquishment of dower by the wife must be actually performed by him in order that the relinquishment be effective.6 v. Folger, 14 Ohio 610; Kline v. Kline, 57 Pa. 120, 98 Am. Dec. 206; Shea's Appeal. 121 Pa. 302, 1 L. R. A. 422, 15 Atl. 629.

3. Gould v. Womack, 2 Ala. 83; Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; Farrow v. Farrow, 1 Del. Ch. 457; Taylor v. Taylor, 144 111. 436, 33 N. E. 532; Landes v. Landes, 268 111. 11, 108 N. E. 691; Tilton v. Tilton, 130 Ky. 281, 113 S. W. 134; Tarbell v. Tarbell, 10 Allen (Mass.) 273; Pierce v Pierce, 71 N. Y. 154, 27 Am. Rep. 22; Grogan v. Garrison, 27 Ohio St. 50; Kline v. Kline, 57 Pa. St. 120, 198 Am. Dec. 206, 64 Pa. St. 122; Compare Gordon v. Munn, 87 Kan. 624, 125 Pac. 1.

4. King v. King, 184 Mo. 99, 82 S. W. 101; Graham v. Graham, 143 N. Y. 573, 38 N. E. 722.

5. Andrews v. Andrews, 8

Conn. 79; McNutt v. McNutt, 116 Ind. 545, 2 L. R. A. 372, 19 N. E. 115;Forwood v. Forwood, 86 Ky. 114, 5 S. W. 361; Wentworth v. Wentworth, 69 Me. 247; Naill v. Maurer, 25 Md. 532; Cauley v. Lawson, 5 Jones Eq. (N. C.) 132; Gelser v. Gelser, 1 Bail. Eq. (S. C.) 387.

6. Brenner v. Gauch, 85 111. 368; Garrard v. Garrard, 7 Bush (Ky.) 436; Sargent v. Roberts, 34 Me. 135; Johnson v. Johnson's Adm'r, 23 Mo. 561, 30 Mo. 72. 70. Am. Dec. 598; Sheldon v. Bliss, 8 N. Y. 31; Little v. Dwinell, 57 Vt. 301. But see Gordon v. Munn. 87 Kan. 624, 127 Pac. 764; Vincent v. Spooner, 2 Cush. (Mass.) 467; Freeland v. Freeland, 128 Mass. 509. See editorial note, 13 Columbia Law Rev. 260.

Real Property.

[ Sec. 227

In some states, the wife forfeits the provision made for her by any misconduct on her part such as would bar dower.7