Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-27

the husbands life may be ascertained
with reasonable certainty from estab-
lished tables of mortality aided by
evidence in reference to the health
and vigor of the husband and wife.
Nothing is given in this case upon
those matters, nor can we conceive
in what manner or by what rule the
effect of the present condition of the
health or vigor of the husband or
wife upon their longevity can be COM
puted with mathematical certainty to
affect the value of the inchoate dover
in such a case. Plaintiff in this case
knew at the time he took the receipt
that defendant was married, and if
he desired the contract to include the
wifes dover he knew how to secure
it, and now he is not in a position to
ask the court to make a new contract
for him.
In Sternberger " McGovern, Sc N.
Y. II, 10, the court say: Under such
a contract, to require the defendant
to convey the Mott Haven property to
the plaintiffs and pay such compen-
sation as the court should determine
its market value was impaired by the
outstanding inchoate right of dover,
or such sum as the real value of such
right ascertained by the tables of NOR
tality, would be harsh and oppressive.
The defendant never made a contract
to do this. To charge him with the
difference in the market the title
would impair that to much greater
extent than the real value of the right.
To compel him, in effect, to purchase
the right by paying the plaintiff
therefor, its value determined by the
tables of survivorship and mortality,
would in a case like this be unjust.
He as we have seen, contracted for
an exchange of his property for that
of the plaintiffs; loss which the appli-
cation of those tables to this particu-
lar case might subject him. These
tables when applied to a great num-
ber of cases will, in the aggregate,
show correct results; hence, they may
be used yb life insurance companies
with safety in fixing their rates, and
are resorted to by. courts when the
probable duration of life must be de-
termined in adjusting the rights of
parties, But to determine the value
of the inchoate right of dover in this
| way, for the purpose of enforcing the
specific performance of contract for
the exchange of real estate, with COM
| pensation, would be unsustained by
precedents or sound principle" And
in that case plaintiff was relegated to
his remedy for damages.
In Cowan v Kane, 211 Ill. 576 (Oct
1900 1t is said: In attempting to
support the decree, counsel say that
a computation can be made upon the
basis of the mortality tables. Such
tables are used more from necessity
than because they are reliable guide
! in fixing the probable duration of any
individual life, being mere averages
of many lives, but we know of no
tables by which the value of an in
choate right of dover can be approxi-
mately estimated II would
be carrying the use of mortality tables
to an unwarranted extent to apply
them in such case to determine sub
stantial rights"
AS to whether a court of equity will
enforce a specific performance in such
case by ascertaining the present
value of the inchoate dover of the
wife, and abating the price to that
amount, the authorities are quite at
variance. This may be partially ac-
counted for by the fact that the
courts, holding that performance will
be decreed in such cases and the price
abated to the extent OF the value OF