By the law of this state, every married woman living with her husband at his death, has right of dower in one third of the real estate, of which her husband died posses *320sed, in his own right. Stat. p. 180, The word possessed, undoubtedly, is here used as synonymous with seised ; and in this light I shall consider it. The general question to be determined, is, whether James Stewart died seised of the estate in which dower is demanded.
A voluntary deed of all his real estate, was given by Stewart, to his children, nearly two years before he died, and put in the possession of a third person, to be delivered to them, upon his death. On the happening of this event, the deed was delivered pursuant to the trust.
Two objections are made to the validity of the deed, so far as the rights of Mrs. Stewart are concerned. It is said, that this instrument was virtually a devise ; and that if it was not, it was fraudulent, as it related to her.
1. As to the nature and effect of the deed. It must be admitted, as no particular form of a devise, is, by law, prescribed, that any writing, by which the party intends to dispose of real estate, by way of last will, after his death, if it be not contrary to the established rules of law, and having the requisite legal formalities, will amount to a devise. Pow. on Devises 13. & seq. Habergham v. Vincent, 2 Vesey jun. 204. 230. That this principle has no applicability to the case before the court, is unquestionable. It never was the intention of Stewart to devise his estate; but to convey it, by deed. The instrument of conveyance has two witnesses only ; and is, in consequence, deficient in the legal formalities indispensible to a devise. Besides, it is, strictly speaking, a deed, taking legal effect from its execution. I do not mean, that it was consummate ; nor is it necessary it should be ; but that it was efficacious to the passing of the interest conveyed, from the delivery of the deed to the trustee or agent. The case of Belden & al. v. Carter, 4 Day 66. is, on this point, perfectly conclusive. The deed, in that case, was delivered to a third person, to keep, and if not called for, to deliver, after the death of the grantor, It was determined by the court, that by legal operation, it became the deed of the grantor presently ; and that the depositary held it as trustee for the use of the grantee ; that the title became consummate in the grantee, by the death of the grantor ; and that the deed took effect, by relation, from the time of the first delivery.
A criticism has been made on an expression of the court, rather inaccurately made, but which, perhaps, when taken in reference to the subject matter, is not untrue. It was said, that the deed was in the nature of a testimentary disposition of the es*321tate, and revocable, by the grantor, during his life, without an express reservation of that power. The court, by this phrase, did not intend to aissimilate the deed to a devise, except in this particular, that it was revocable as a devise is. More correctly to communicate the obvious meaning of the court, it ought to have been said, not that it was of the nature of a testamentary disposition, but that it had, from the power of revocation, one of the inseparable properties of a devise. If it had been of the nature of a devise, which operates always in future, it could never have been a deed, and so declared to be, operating in prœsenti.
The case of Wheelright & al. v. Wheelright, 2 Mass. Rep. 447. comprises the same doctrine that was declared in Belden v. Carter, conformably with the English decisions on this subject. Bushell v. Passmore, 6 Mod. 217. 218. Perk. 143. 144.
The instrument in question, then, was not a devise, but a deed, taking effect from the first and only delivery, and consummated by the death of the grantor.
2. Was the deed fraudulent, as relative to Mrs. Stewart ? This depends entirely on the right, which she had to the estate conveyed, anterior to the death of her husband. If she had no right, which the law recognizes, then the delivery of the deed could be no fraud on her right, that is, no fraud on a non-entity. By the English law, the right to dower originates on the marriage ; but by our law, it takes its origin at the husband’s death. Our ancestors did not think it expedient to restrain that free transfer of real estate, which the interest of the community requires ; and for this reason, the law has given to the wife no lien upon, or right, legal or equitable, to the husband’s estate, during his life. Her condition, in this respect, is like that of her husband’s children, or other heirs ; and the only right of either, is, to such estate as he has not disposed of. The condition of creditors and purchasers, is altogether different. The law, proceeding on the equitable ground, that the estate of debtors ought not, unless for valuable consideration and bona fide, to be placed out of the reach of their creditors, has rendered all deeds made in contravention of this principle, absolutely void. Undoubtedly, in the case of a devise, the wife will be entitled to her dower ; but this is not on the ground of any right prior to her husband’s death, but because the estate is considered as cast upon her, before the devise commences its operation. The cases collected by Cruise, in his Digest, vol. 4 p. 407. & seq. have no analogy to the subject under discussion. On examination, it will be found, that they all proceed on the *322principle, that fraud had been practised on an existing right. Besides, the fraud recognized, and relieved against, was in equity, and not at law, and was not a fraud which the law notices It cannot be necessary to show, that in equity, fraud is presumed, in many cases, on grounds upon which the law will not pronounce the transaction to be invalid ; and that that may be a fraud in equity, which is not a fraud at law. Trenchard & al. v. Wanley, 2 P. Wms. 166. Townsend v. Lowfield, 3 Atk. 536, 537. Chesterfield & al. Exrs. v. Jansen, 1 Atk. 301.
In conclusion, I am of opinion, that the estate in question was legally conveyed, by the deed, to the children of the grantor ; and that the deed was not fraudulent, as it respects Mrs. Stewart.
Peters, Brainard, and Bristol, Js. were of the same opinion.Decree of probate to be disaffirmed.