— Under the pleadings and agreement of parties, the oxdy question for the Court in this case is, whether defendants at the time dower was demanded, and on the day of the date of writ, were tenants of the freehold.
A lease of the farm out of which dower is claimed, was executed on August 18, 1853, and recorded on the same day, from William B. L. Staples to the defendant Lydia L. Staples, for the term of her natural life. She had lived upon *168tbe farm before tbe lease was executed, and bas lived upon it since, and carried it on.
Tbe liability of tbe defendants in this action is denied, on tbe ground that tbe lease is ineffectual, because it is executed by tbe lessor only, when from its form it was evidently designed that it should be executed by tbe other party also. Tbe transfer of tbe land by the lease is unconditional ; and tbe covenants therein intended for her execution by signing and sealing tbe instrument are independent. Tbe right of tbe lessor to have such covenants executed by her, might be waived by him. He put tbe lease upon record, and this must be regarded as a waiver of this right, and a treatment of tbe lease as being in all respects valid to pass tbe land described; and she cannot for this reason treat it as a nullity, when called upon to assign dower to tbe demandant.
It is insisted in defence, that Lydia L. Staples was ignorant of tbe existence of tbe lease, until after the demand of dower upon her by tbe demandant, and that she therefore could not have accepted tbe same. All tbe testimony in tbe case was received, subject to legal objections. Tbe only evidence, that Lydia L. Staples bad no knowledge that such a lease existed, is from her declarations made in the absence of tbe other party, which were incompetent.
It must have been tbe design of the lessor to provide means for tbe livelihood of the lessee, who was bis mother, when be gave tbe lease; and no good reason is suggested for bis doing so, and going to sea on a long voyage immediately after, if be withheld from her entirely a knowledge of bis bounty. It is equally unnatural, that she should, upon tbe execution and recording of tbe lease, undertake tbe business of carrying on tbe farm, unless she bad satisfactory information that she bad an interest therein, according to tbe terms of tbe lease.
Tbe lease being/or a nominal consideration only, and tbe yearly rents and profits of tbe farm by tbe lowest estimation, being of tbe value of fifty or sixty dollars, must *169have been considered beneficial to the lessee; and the presumption is, that she held under it at the time of the demand of dower, and so continues to hold. Church v. Gilman, 15 Wend. 656.
It is contended, that unless both defendants are freeholders in the land, they cannot be answerable in this action. From the pleadings, it appears that Jacob Staples was the husband of the other defendant; and that he defends in the right of his wife, and she in her own right. This is in accordance with the provision of the statute of 1848, c. 73, § 1, and the action cannot fail on this ground. The de-mandant is entitled to her dower in the premises; and according to the agreement of the parties, the action must stand for the settlement of some questions which are to be submitted to a jury, if the parties do not succeed in an adjustment themselves.