Frost v. Deering

The opinion of the Court was afterwards drawn up by Whitman C. J. The plaintiffs claim dower in right of the wife, in the premises described, she having been, before her intermarriage with Frost, the - widow of Caleb Lassell, jr. The defendant claims under a deed from said Caleb, purporting to be signed by Mrs. Frost during the coverture of the said Caleb, releasing her right of dower in the premises. The subscribing witnesses testified, that’ they did not see her sign the deed ; and there was evidence tending to show, that the signature was not hers. ■ But a witness was produced, who testified to her admissions, during her widowhood, that she did sign it, and that she received a gratuity for so doing. Another witness testified, that she in the time- of her widowhood, stated that she did not sign the deed herself; but that she could not claim her dower in the premises, because her husband had put her name to it by her request. The plaintiffs contended that' the evidence, at the utmost, only shows, that her former husband put her name to the deed, at her request, some days after he had executed it himself; and, that this was not such a joint execution of the deed with [159] him as to bar her of her right of dower; and that she could not authorize him so to put her name to a deed; and furthermore, that the deed itself contains no apt words to convey the right of the wife to her dower. The objections thus made, it is believed, are not tenable. It is no uncommon occurrence for joint obligors, and joint grantors to execute their deeds at different times ; and it never, probably, occurred to any one to object, that their deeds were, thereby, prevented from operating conjointly; and the practice of executing the deed by the wife, in order to bar her of her claim to dower at a time, many days subsequent to that at which the husband had executed it, is equally common and equally unobjectionable. The authorities are perfectly clear, that a deed, or other instrument, is well executed, if the name of the party be put to it by his direction, and in his presence, by the hand of another person. And no reason is apparent to us why the wife might not as well so execute a deed, releasing her right of dower; nor why it should not be as competent for her to have her name so placed by her husband, by her direction, as by any other person. As to the terms used in the deed, indicative of the relinquishment of the right of dower, we see no reason to believe, that they are not apt and appropriate for the purpose. They are such as are usual in such cases. .It is furthermore objected, on the part of the plaintiffs, that the admissions of Mrs. Frost, made during her widowhood, of her . having executed the deed, are inadmissible. To this we cannot yield our assent. The subscribing witnesses had been called, and failed to prove the execution of the deed by her. Her admissions thereupon became competent evidence. They were the next best evidence of the fact. Such evidence, under such circumstances, is not liable to objection as showing better evidence attainable by the defendant. Judgment, therefore, must be entered on the verdict.