In re the last will & testament of Rausch

Mitchell, J. Assuming the instrument (Exhibit A) to be in terms sufficient, if valid, to effect such a result, the question in this case is whether a married woman can, by contract with her husband, release and relinquish to him her incipient or inchoate interest as wife in his real estate, so as to exclude her, as widow, from dower. We use the term “dower” because although “dower,” strictly so called, no longer exists in this state, yet the provisions of the present statute for the [293] widow in the real estate of her deceased husband are rather in the nature of* an enlargement than an abolishment of dower, and this inchoate right, under the statute, is of the same general nature as the inchoate right of dower at common law. It was a well-established rule of the common law that a wife could not relinquish her dower in the real estate of her husband by executing a release to him. 2 Scrib. Dower, 309. It is true that in equity deeds of separation of husband and wife, made through the agency of a trustee for the wife, would be enforced if their object was actual and immediate, and not contingent or future, separation, and, if so provided in them, might exclude her from dower and distribution in her husband’s estate. Cord, Eights Marr. Worn. § Ilia, et seq. But, whatever may have been the rule in equity, the power of the wife, even by a deed of separation, to release to her husband her inchoate statutory right in his real estate is excluded in express terms by the statute, which declares that “no contract between a husband and wife, the one with the other, relative to the real estate of either, or any interest therein, shall be valid.” Gen. St. 1878, c. 69, § é. The inchoate interest of thé wife in the real estate of the husband, while it is not an estate, or even a vested interest, yet is a valuable, although contingent, interest in real estate, and a release of it is “a contract relative to an interest therein,” within the meaning of the statute. As the husband died testate as to all his property, his widow would not, in any event, be entitled to any allowance or distributive share out of his personal property. Gen. St. 1878, c. 51, § 1; Johnson v. Johnson, 32 Minn. 513, (21 N. W. Rep. 725.) Hence it becomes unnecessary to consider whether this release would have excluded respondent from distribution had her husband died intestate. The judgment of the court below must therefore be affirmed wherein it adjudges respondent entitled to an assignment of her statutory rights in the real estate, but reversed wherein it adjudges her entitled to the statutory allowance out of the personal property of her husband. Ordered accordingly.