January, 1842. Hine s et. al. v. Soule. FRANKLIN, though made while in possession under his deed, that the plaintiff's intestate was incompetent to make a deed, when his deed was executed. It is a matter sometimes of considerable nicety to determine when the relation of predecessor and successor shall so hold between the declarant and the party as to render the rule applicable, and these difficulties arise in the main under the registry acts. In the case in the 13th Vt. R., Hollister held his title of record. The admissions of Mackres were to a stranger, and Hollister was in no way privy to them, when he purchased. The court, in that case, felt pressed with the consideration that, to permit a purchaser to be defeated in his record title by the private concessions of a former owner, made while in possession, would be to defeat, in a great measure, the beneficial effects of the registry system. In the case now before us, Lawson might have been called as a witness by the plaintiff, and my brethren think he should have been, and that his admissions against his interests, made prior to the attachment and while in possession of the oxen, should not be received against the defendant. At first, I was inclined to a different result, but as unanimity of opinion is necessary to a decision in this case, I concur with them. The rule, that if a person is still living and can be a witness, he must be called, and that his admissions are not evidence against his vendee or successor, though made while in possession and against his title, is certainly sustained by many adjudged cases, and perhaps should be taken as the better opinion, and as the most salutary rule. In New York, though the decisions are exceedingly conflicting, the cases of Alexander v. Mahon, 11 Johns. 135; Hurd v. West, 7 Cowen, 752; Whitaker v. Brown, 8 Wend. 490, and Bristol v. Dana, 12 Wend. 142, are in point in favor of the rule. Fitch v. Chapman, 10 Conn. R. 9, is full to the same effect. See also, Barrett v. French, 1 Conn. R. 354. Hedger v. Horton, 3 Carr. & Payne. 179. The result is a reversal of the judgment of the county court, and the cause is remanded to that court for trial. Judge Royce, having been detained, did not sit in this cause. ESTHER THAYER v. WHEELOCK S. THAYER, ANDREW M. In Chancery. A conveyance by the husband, shortly before his death, of all his property, both real and personal, to his children, without any valuable consideration, and with the intent to defeat his wife of her dower and her share of the personal estate, securing at the same time to himself the possession, use and control of it during his life, is fraudulent against the claims of the wife, and will be set aside. Though the wife separate from the husband by reason of family discord, yet such separation is no forfeiture of her right of dower and her share of the personal estate, though she may have no justifiable cause of separation. THIS case came to this court by appeal from the decree of the court of chancery for this county, at its September term, 1841, assigning to the oratrix dower in the real estate of her late husband, and ordering the defendants to pay her, by the time in said decree limited, a certain sum to make up, with what she had received, one third of the value of the personal estate left by her said husband, after payment of his debts and funeral expenses. On the hearing in this court, on the bill, answers and testimony, the court found that Amherst Thayer, the husband of the oratrix, during his last sickness, and in expectation of soon dying, conveyed all the said estate, real and personal, to the defendant, Wheelock S. Thayer, his son, in trust for said Wheelock S. and the other defendants, all of whom were children of said Amherst Thayer, by a former marriage. There was no consideration for the conveyance, but that of love and affection, and it was made with the intent to defeat the oratrix of her dower in the lands, and of her share of the personal estate, of her said husband. The husband, at the same time, by taking a lease from said Wheelock S., secured to himself the possession and use of all the property, so conveyed, during his life, upon a nominal annual rent for the real estate. It appeared from the testimony that there had been difficulty between the husband and wife, and that they had, shortly before his death, separated by mutual consent. FRANKLIN, January, 1842. Thayer v. Thayer et al. FRANKLIN, January, 1842. Thayer v. Thayer et al. A. O. Aldis and N. S. Whittemore, for oratrix. Of the real property. 1. The widow is entitled to one third of the real estate of which the husband dies seized. Vt. Stat. 367. As our statute has altered the common law right of dower, by restricting it to those lands of which the husband dies seized, we shall not be able to find any precedents in the English authorities, or even in the decisions of other states, (except, perhaps, Connecticut,) that would help to decide this case. It must be settled, therefore, upon general principles of reason, policy and equity, and by the application of analogous doctrines of law. The wife is said to have both a civil and moral right to dower. Banks v. Sutton, 2 Pr. Wms. 702, 703. This right springs, first, from the nature of the marriage relation, and, by an implied agreement of the husband, upon entering into it, he is bound to support her during life, and his death would seem to be the occasion, of all others, when justice, affection and humanity unite to demand that a reasonable provision for her support should not be withdrawn. This agreement, on the part of the husband, is, in many of the old forms of marriage, directly expressed in words, as with all my worldly goods I thee endow.' The obligation to provide for her, after his death, is still more imperative when we consider the disablities which the wife incurs upon her marriage. She can acquire no property of her own, but all her earnings belong to her husband. All her personal property is thereby vested in him, and the use of all her real property. At his death, therefore, his estate is composed of all the personal property she had at marriage, of the rents and profits of all her real estate, and of all the earnings of her life. To deprive her of a reasonable share of what is really her own property, the fruits of her own labor and economy, to take away her support at the precise period of time when, on account of her bereavement, she is least able to bear up against adversity and most needs aid and consolation; this is at war with all sense of justice and every sentiment of affection. A wise policy, too, which ever goes hand in hand with justice, encourages this provision for the widow, as tending to promote harmony and happiness in domestic life. The wife works cheerfully to accumulate an estate in which she feels that her reasonable share is secured to her. She finds FRANKLIN, January, no capricious and arbitrary master in her husband, no rivals 1842. in her children. Her reasonable provision being fixed by law and placed beyond the control of her husband, all motives are withheld from unfilial children to embroil their parents in Thayer et al. domestic strife. The policy of securing to woman her just rights extends its influence beyond the scenes of domestic life, and promotes the general welfare of society. The laws which raise the condition of woman, become some of the most important causes in advancing the progress of civilization. Hence it may be noticed, in the histories of most nations, that their progress in civilization is uniformly accompanied with laws for improving the condition of the female sex. The considerations here suggested have ever been deemed so consonant with natural affection, so strongly supported by the claims of justice, and so obviously required by a wise policy, that every civilized nation has established, by law, the right of dower, and sacredly protected it from the invasion of the husband. Even the rude Gothic and Teutonic tribes, in the dark ages, through all the vicisitudes of their wars and their changes of habitation, ever guarded the dowry of the wife. The civil, far more indulgent than the common law, made the wife the partner of the husband and gave her the sole control of her separate property. The common law, at first, gave for dower only the use of onethird of the lands of which the husband was seized at marriage, but, by Magna Carta, the right of dower was extended to one-third of all the lands of which the husband was seized during coverture, and various provisions were inserted for more effectually securing the widow against oppression. 1 Reeve's Hist. England, p. 241, 242. From the time of Magna Carta, the law has remained unaltered in England, and most of the states where the common law prevails, and so watchful have the courts been to protect the rights of the widow, that it has become a maxim in the books that dower is a favorite of the law. II. The construction of the statute which the defendants contend for, is not demanded by the object which the legislature had in view in altering the common law. Their intent was to remove an embarrassing restraint upon the Thayer υ. 1 January, 1842. Thayer v. Thayer et al. FRANKLIN, alienation of lands. They did not seek to diminish or embarrass the wife's right to a support from her husband's estate upon his death. On the contrary, such intent is uniformly disclaimed in the text books on this subject, and it is asserted that the old law was thought to give but little practical protection to the wife's rights. 4 Kent's Com. 41. It has never been suggested nor agitated in this state that dower should be left to the sole control and discretion of the husband. Our statutes fix the amount of dower, forbid the husband from altering it by will, and prefer it to the claims of creditors; thus recognizing every principle of the common law which gives it protection. Rev. Stat. 262, 289. The fair operation of our law, as it stands, can work no wrong to the wife, for in all bona fide conveyances of lands, the money received on the sale becomes a part of the personal property, of which the wife may have her assignment. Give to our statute the construction the defendants ask, and the wife is reduced, in this state, to a more abject condition than she is in any civilized nation, or than she ever was among the rude tribes of the Goths and Teutons in the dark ages. She becomes an abject dependent on the will or caprice of her husband, a rival with her children for his favor and support. After spending her life in the faithful discharge of her conjugal duties, she may be turned off in her widowhood and old age to utter destitution. The alteration of the law makes it more incumbent on the court to defend the wife from wrong, as she now has no power to defend herself. III. Such voluntary conveyances, as are set up by the defendants, would be void as against creditors. Rev. Stat. 262, 1 to 5; ib. 268 and 277. Surely the claim of the wife for a support from that estate into which all her earnings and all her property have gone, cannot be deemed less sacred than the demands of ordinary creditors. The spirit of our laws and the provisions of our statutes prefer her claims to those of creditors. IV. The husband cannot defeat his wife's right of dower by devise. 1Rev. Stat. 289. The conveyances by Thayer are in the nature of a testamentary disposition of his property. They were made in prospect of death; they conveyed all his real and personal property, reserving the use to himself for life, and dividing it upon his death among his legal heirs precisely |