The opinion of the court was delivered by
Bennett, J.The question, now presented for the decision of this court, is important in principle, and deeply involves the well-being of, at least, a portion of the community. It is due to the counsel in the cause, that we should say that our investigations have been in no small degree facilitated by their industry, and the ability with which it has been argued.
Though the court are not unanimous in their views, yet a majority of the judges concur in affirming the decree of the chancellor.
What shall be the effect of the conveyance in question upon the rights of widow ? The question is important, and, especially so, as shifts, like the one before us, are easily resorted to with a view to affect the interests of the wife. The wife is not to be barred of her dower, without her consent, by the will of her husband, even, though he has thereby made an ample provision for her support. Her claims to dower are paramount to those of creditors, and it has long since become *118a legal maxim, “ that dower is a favorite of the law.” Sir John Trevor, Master of the Rolls, in the case of Lady Dudley and Lord Dudley, Preced. in Chan. 244, calls it “ a legal, an equitable, and a moral right.” In Lili. Abri. 666, G. p. 477^ jt jg ga¡4 . u js a ,.¡gjlt favoured in a high degree, and, next to life and liberty, held sacred.” It is a right which was instituted for the subsistence of the wife during her life, and the husband is bound, by the law of God and man, to provide for her a support during his own life, and, upon his death, the moral duty does not end. He should provide for her so long as she lives. In view of the law, relative to husband and wife, this is a most reasonable duty. During coverture the wife can acquire no property of her own, and if, when married, she has real estate, it thereby vests in the husband during coverture, and her personal estate in possession becomes his absolutely, and such as is in action is subject to his control. If she has no real estate of her own, she may, by his death, be left the object of common charity, unless provided for out of the husband’s estate. Courts in ancient and modern times have been astute in protecting the right of dower, and shall it be said of the courts of this state that they have been regardless of duty in protecting to the widow this valuable right, which comes as a substitute, or compensation, for those which, upon the marriage, she surrendered up ? To hold that the oratrix in this case is barred of her dower, would be indeed enabling the husband to overreach the wisdom of the legislature, when they provided that this right could not be barred by will. It is admitted, in the defence, that if the claim of the oratrix to dower can be recognized as a right, during coverture, it cannot be defeated by the family settlement. Though, under our law, dower is limited to such lands as the husband died seized of, yet, if the right has existed during coverture, then it should be protected, and a conveyance, with the intent to defeat such right, would be fraudulent and void as against the widow, and as to her, the husband would die seized. Before marriage, the husband has an inchoate interest in the property of the wife.
If she, during the treaty for marriage, without the knowledge of her intended husband, makes a voluntary disposition of her property, it is a fraud upon his marital rights, *119though it be done prior to its celebration, and chancery will, upon his application, set it aside. This is settled law. Pitt v. Hunt, 1 Vernon, 18. Carleton & wife v. Earl of Dorset, 2 Vernon, 17. Howard v. Hooker, 2 Chan. R. 42. Goddard v. Snow, 1 Russ. R. 42. Clancy on Husband & Wife, 614. Newland, 424. Lord Thurlow, in the Countess of Strathmore’s case v. Bowers, 1 Ves. Jun. 28, says, £! the law conveys the marital rights to the husband, because it charges him with all the burthens which are the consideration he pays for them, and therefore it is a right upon which fraud may be committed, and out of this right arises the rule of law, that the husband shall not be cheated on account of his consideration.” So the right of dower arises from a contract, made upon a valuable consideration, marriage being, in its nature, a civil contract, and the rights growing out of it are the consideration moving from each of the contracting parties to the other. This is the doctrine of the Master of the Rolls in the case of Banks v. Sutton, 2 Pr. Wms. 705, and to me it is most reasonable. The common law doctrine of dower in all the lands of which the husband was seized during coverture, was considered by this, and some of the other states, as an unreasonable and unnecessary clog upon the free alienation of estates, and, as the usual course is for the wife, upon an alienation, to join with the husband in the conveyance, of little practical use. If the husband is required to act in good faith, this change in the law does not essentially impair the rights of the wife for a support during widowhood. . If, however, her claims to dower are to depend upon the caprice of the husband, and to be superseded by his conveyance, concocted and executed mala fide, and without consideration, our statutory provision might well receive our severest animadversion. As well may the rights of the wife to dower, under our law, be recognized and protected during coverture, as the rights of the husband in the property of the wife before marriage. The one is no more ideal than the other. Most certainly the rights of dower, under our law, during coverture, cannot be more fragile than at common law, before the marriage celebration. In Martins v. Bennett, Bunb. R. 336, a deed, executed in secret, by the son to thé father, on the morning of his executing his marriage settlement, was set aside upon the circumstance of secresy alone, *120it being in fraud of the marriage agreement. So Lord Ch. B. Gilbert has said that “ if a husband, seized in fee of lands, should, immediately before his marriage, vest the legal estate in trustees, to disappoint his intended wife of dower, such a conveyance would be fraudulent, being made with an ill conscience, to deprive the widow of the provision made for her by the common law.” Gilb. Chan. 267. In Swain v. Perine, 5 Johns. Ch. R. 489, Chancellor Kent held that a deed, given by the husband, for love and affection, to a daughter, upon the eve of his marriage, and kept secret from the intended wife until after her marriage, was fraudulent against her claim to dower. The right of the wife to dower, under our law, in the lifetime of the husband, it will readily be admitted, cannot be less sacred. The case of Stewart v. Stewart, 5 Conn, has been pressed upon us, but we cannot yield our assent to the authority of that case. The notion that the right of the wife to dower in the husband’s lifetime, is a nonentity, and not susceptible of fraud being predicated of it, is unsatisfactory, and, we think, unsound, and at war with the principles of justice. Though the right may be inchoate, it should be protected against the mala fide acts of the husband.
The statute gives the widow, at least, one-third of the personal estate, after the payment of debts, &c.; and this she cannot be deprived of by the will of her husband, nor by jointure, except at her election. The widow’s claims for her share, under our statute, is an analogy to the claim of the widow of a freeman under the custom of London. The statutes of distribution were borrowed from that custom, and hence the decisions under it may well illustrate what should be the course of decision under'our statute. The case of Edmundson v. Cox, 7 Viner’s Abri. 202, is an important one, showing the analogy and the grounds upon which courts have- proceeded. The bill was by the widow of a freeman of London for her customary share. The husband had made his will and devised to the wife certain real and personal estate. There was, sealed up in the will, the bond of the testator, executed before the date of the will, conditioned to pay the defendant a given sum of money, or transfer to him a given amount of bank stock. The obligee was the nephew of the testator, and the bond voluntary and without *121valuable consideration. It was held, by the Master of the Rolls, that the widow, before she could have a decree for her customary share, must first disclaim all benefit under the will, and that the bond, being in the nature of a voluntary gift, was fraudulent as to the customary 'share of the wife, and should not stand in her way. He adds, “ such sort of contrivances to evade the custom, have always been set aside in this court.” In City v. City, 2 Lev. 130, the deceased had, by deed, assigned a term to his son as a provision, and the son had gone into possession, and it was held this did not bar the widow of her customary share, the assignment being without consideration, and it was said, “ the same is the law as to goods.” In Smith v. Fellows, 2 Atkins, 62, a voluntary deed of a lease-hold estate to a son was set aside, and the widow’s customary share decreed to her. The husband, it was said, notwithstanding the deed, was still seized of the lease-hold estate, and in the same case, before the Chancellor, 2 Atkins, 377, he says, “ it was a plain fraud upon the custom.” In Hall v. Hall, 2 Vernon, 277, it was held that if a freeman gives away goods in his lifetime, and yet retains the deed of gift in his own power, or retains the posession of the goods, or any part of them, it is a fraud upon the custom, and will not conclude the widow, and in the case of Fairebeard v. Bowers, 2 Vernon, 202, a voluntary judgment by a freeman of London, payable after his death, was postponed to the widow’s claim for her customary share. A contrivance to evade the rights of the widow under the statue should not meet with more favor. The custom of London and the statute of distribution are each equally imperative in furnishing a rule of property, and to withdraw a case from their operation, to the injury of the widow, under a contract made mala fide, and without consideration, would be a fraud upon the law and upon her rights. .. ■
In Holmes v. Holmes, 3 Paige, 363, the Vice Chancellor held, that a conveyance of personal estate to take effect after the decease of the husband, and made with the intent to defeat the widow of her distributory share, under the statute, was a fraud upon her. Though this decree was reversed by the Chancellor, yet I think the opinion of the Vice Chancellor the better reason. The Chancellor evidently pro*122ceeds upon the same ground that is assumed by the Connecticut court in the case of Stewart v. Stewart.
The Chancellor supposes that the wife and the children, both stand upon the same ground, and that neither have any guck }n qie ]jfe tjme 0f qie ancestor, as to be the subject of fraud. But there is a manifest difference. The ancestor-, may, by will, exclude entirely the children from all participation in his estate; not so the wife. The children are not heirs so long as the ancestor lives, and have no inchoate rights as such. The husband and the wife each acquire their marital rights, in one sense, as purchasers, and upon valuable consideration. In the language of Sir Joseph Jekyll “ the marriage, and its attending rights and disabilities, is a consideration moving from each of the contracting parties to the other.” In Douglass & wife v. Ward, 1 Cases in Chan., it was expressly adjudged that marriage was a good consideration to make the feme a purchaser.
But in the case now before us, there was no delivery of personal estate. The contract provides for the distribution of such as should remain and be on hand at the time of the death of the ancestor, and the lease, or demise, (as it is called,) to him, secures him in the possession and use of it during his life. Both contracts being made at the same time are to be regarded as one, and it is expressly provided that the deceased should retain the possession, as well as the use, of the property, and he in no way abridged himself of its control. None was to be distibuted, under the trust conveyance, but such as should be on hand at the time of the death of the ancestor. A gift is not consummated, nor the ownership of the chattel changed, until a delivery. 2 Johns. 52. 7 Johns. 26. 18 Johns. 148.
In a case in 3 Anstr. 882, reported also in a note to 5'iVesey, Jun. 266, the father covenanted upon the marriage of a daughter to leave her, by will, an equal share of his personal estate with her brother and sister. To elude this covenant, the father, in his life time, conveyed stocks to his son, reserving to himself the dividend during his natural life. It was held, in the house of Lords, that as the ancestor reserved in his own hands the stocks, by taking the dividends during his life, he was, at the time of his death, the owner of the stocks for all beneficial purposes. The court did not per*123mit the right of the daughter to her testamentary portion, according to the covenant of the ancestor, to be eluded by an act not to take effect against his own interest, but only at a time when it would cease. This is like the case now under consideration.
The position taken by counsel, that the widow is barred of any claim, by reason of her having left her husband before his death, cannot be sustained. It is undoubtedly true that previous to the separation, there had been some family discord ; the deceased had a family of children, grown up, by a former wife, and a part of them living in the same family ; and the oratrix had children by a former marriage, and was a second wife. Under such circumstances, it is not an uncommon thing for jealousies to spring up and endj^in strife, but it is of no importance to inquire into the merits of the controversy, or who might have been most to blame. The evidence tends to show that the separation was in the end by the mutual consent of husband and wife. Indeed, the consent of the husband seems to be involved in the fact that the small amount of property carried away by the wife, was delivered to her, by the husband, for the specific purpose of carrying away, and was taken with his approbation.
But, be this as it may, there is nothing in the evidence that can bar the widow’s rights of dower, or her right to a distributory share. Though the wife might have been indiscreet, and have left the husband without a justifiable cause, still this would not work a forfeiture of her rights.
The conclusion, then, to which we come, is, that the oratrix had, in the life time of her husband, such rights as should be recognized, protected and enforced ; that the attempt to elude these rights, in the manner disclosed in this case, was mala fide, and a fraud upon the law and upon the marital rights of the oratrix, and that, as a consequence, the husband, so far as respects the widow, must be regarded, at the time of his death, as being the owner and having the seizin of the property in question. This result, we think, is in accordance with well settled principles, and such as sound policy and justice dictate.
The decree of the chancellor, then, is affirmed with costs in this court, with this modification, viz : that the time for *124the payment of the sums decreed by the chancellor is to be extended to the 15th of June, A. D. 1842, and the cause is remitted to the court of chancery to be proceeded with accordingly.