Shotwell v. Sedam's Heirs

By the Court : It is certaintly a nice question, whether the devise in the will to the widow would not, upon being accepted by her, operato to bar her dower, in the premises devised to others, and charged with her [8] support. But this question it is not necessary to decide, because the court are very clearly of opinion that the subsequent contract entered into between the widow and Cornelius Sedam constitutes an equitable bar to the dower claimed. Whatever indulgence is shown to the acts of feme coverts, concerning their dower, there is no reason for treating the contracts of feme soles, where dower, in an estate of a deceased husband, is the subject of contract, in any other manner than the contracts of other competent persons. In this case, the widow, with a perfect knowledge of the whole subject, and for the purpose of adjusting all difficulties, agreed to submit her rights, under the will, to the determination of mutual friends. They made an award, and after that award was made, she entered into a written contract with the other party to carry the principle of the award into effect, upon data settled between themselves. In this agreement, it is expressly recited that she had elected to take under the will, whether said election was matter of record or not, and that such election to take under'the will was “in lieu of dower." A respectable provision is secured to her by this agreement, besides what she takes under the general devise, being a full child’s part, and she enters into the enjoyment of it.' There is no pretense that she was ignorant of her rights, that any imposition was practiced upon her, or that the contract itself was in any respect unequal. By her marriage she lost the benefit of it, but that being her voluntary act, can not affect the obligation or extent of the original contract. *It is urged that this agreement extends no further than to settle what she was to receive under the will, and does not touch the question, whetherthe bequest in the will was in addition to or in lieu of dower. The agreement itself refutes this argument. It asserts, expressly, that the arrangement is to be in lieu of dower. It was upon this basis that both parties to the contract proceeded. And it can not be permitted to one of them to take all that the contract gave, upon a state of facts admitted between them at the time, and then deny her own recitation of the facts and set up a claim founded upon a directly opposite position. This would be to practice a fraud upon the heir, who agreed to do certain things, in the expectation that,'by doing them, his estate was discharged of dower. Another argument urged against this agreement being made to operate as a bar to dower, is, that dower being real estate, can [9] ■only be transferred by the legal mode of conveyance. This is not .a tenable position. A man may divest himself of an estate which lies in action only, by doing such acts and making such agreements as operate to bar his action, though no conveyance be executed. Thus, a controversy about title to real estate may be settled by arbitrament and award; so it may by accord and satisfaction, and by other acts in pais. In the case of Smiley and wife v. Wright, 2 Ohio, 506, this court adjudged that a widow barred her recovery of dower by a parol assent that the administrator might sell the estate of her husband, discharged of her dower, upon the faith of which the purchase was made. So, in this case, the agreement, though not a conveyance of the estate, may be set up in equity to bar her recovery. Equity would enforce a specific performance were the defendants driven to seek it; and as the claimant of dower comes into equity for relief, her equitable rights are all open to be considered. We are of opinion that she is barred by the agreement, and her bill must be dismissed.