Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1884-09-25

100 lGts to restore The pr PSI, slowed
upon her 10 claim dover 10 addition.
Authority as we'll rs reason shows that
the contract IN this case lie bar TO
dover. / is maxim that equity
considers that done wbicA ought 10 be
done, Mrs McCaulley, under her agree.
ment, OUGHT TO have released her dover
aud therefore, for the purpoie Of doing
jnsilos, the court will treat the case IN the
same manner as II she had released 1t,
aud consequently dismiss her petition. II
is another maxim that be who seeks
equity must come into court with clean
hands. This application, under the cii-
cumsiapoes, Is unfair and unjust aud
should be refused" ....
About O'Clock court took an hours
recess.
MIR. LoRE's ARGUMENT.
Court reoonvensd At us O'Clock and
Mr.. Lore began his argument. He said !:
at Is a we'll established rule Of the com.
mon Law that 9 wife cannot relinquish
her dover in the real estate Of her hus-
band by executing release to him, nor
in any other way than by joining with
him In conveyance to third person.
The late court Of ohapcery bad no
authority in divorce suit to require q
married woman TO accept . given sum
from her husband in lieu Of and in salts.
faction Of her dover. Her acceptance Of
such sum will not defeat her dover.
Her release Of dover would be q nullity
A married woman can relinquish her
dover only by joining with her
husband In deed of convey
ance to third person. An
agreement made during Overture between
husband and his Wits and trustee
OF the latter that in consideration OF her
enjoying separately and absolutely con-
trolling her separate property she would
reliDquish her dover in his lands is
invalid and cannot be enforced against
her in an action for her dover. The only
question upon the merit of the case ia
whether contract entered into between
husband and wife during ooverture, by
which 1t was agreed that in consideration
Of being permitted to control and enjoy
the property which she had
at the marriage, she should relinquish
her claim to dover, can be enforced
against her by deprivinR her Of dover
know Of no such doctrine, nor any case
In support Of II. Contracts made by the
wife with her husband may under some
circumstances, by compelling an election,
be undoubtedly enforced against her.
do not find any instance in which 1t 10
held that the wife can release to her hus-
band her dover rights directly or In.
directly" Mr.. Lore cited numerous
authorities.
MR.. Higgins ARGUMENT.
The concluding argument was made by
Mr.. Higgins. He said: ''If the provi
sion In lieu of dover be made after mar
riage the widow ia not bound by 1t,
whether It be conformable TO requisites OF
the act Of 81 Hen. VIII, or not, bat
may, after her husbands death, waive it
and prefer her dover. The foregoing pro
vision OF the English statute has been
generally adopted in the United States
and where the settlement was made dur.
ing the ooverture the wife ia entitled to
elect between the jointure and her dover.
II the jointurs settled before marriage
with the intention to bar dover be want
ing q court of equity will enforce a
compliance with the contract by the
widow and restrain her from suing for
dover. Any provision, however inade-
quate and preoarious IL may be, for
which q woman contracts and which she
agrees to accept In lieu Of her dover may
be valid iointure in equity. The
authority OF courts Of law to admit col
lateral provisions to bar dover is founded
on the statutes Of Hen. VIII, but the
Jurisdiction Of courts Of equity in these
matters existed before that act, upon the
principle OF enforcing agreements entered
into between individuals. The husband
and wife may in general enter into con-
tracts with each other, which to an ex-
tent net easily defined, will be recognized
as good and enforced in equity.
In dealings between husband and
wifs, the same as between othsr persons,
there Is difference whether the transao-
tion is founded on consideration or ia a
mere voluntary act. The wife's contract
with her husband will be sustained not
ouly when 1t Is for her benefit, but as
we'll when 1t oEsts burden upon her.
The wife's agreement for reasonable
consideration 10 make an allowance to
her husband ont of the income of her
separate estate will be upheld in equity.
~ IL " Ahu Wiog AUA y JULIE hue
and valuable consideration, should agree
that he should purchase lands aud build
house thereon for her, she should pay
him therefor out Of the prooseds OF her
own real estate. II he should perform
the contract on his side she also could be
compelled to perform 1t on her side. II
the instrument be intended to secure
jointure the form Of 1t is immAterisl."
COURT ADJOURHs.
The Arguments, which were elaborate,
were listened to with q great deal of in
terest. Chief Justice Comegys announced
that a decision would probably be given
in Dover next month. After the trans.
action Of small amount OF business Of
minor importance the court of oyer and
terminer was adjourned until November
10th and the superior court and court Of
general sessions until November 17th.
A. 10 A