The plea, it will be noticed, presents the following facts: Joseph Ireland and his wife, the complainant, were unable to *313•live happily together, and consequently agreed to live apart, --and upon arriving at such agreement, entered into a written contract with each other, without the intervention of trustees, in which Ireland undertook that he would permit the complainant, •during her life, to live separate from him, reside where she pleased, and follow any trade or business as a feme sole, and that he would not molest her, or any other person because of her; ••and both parties agreed that each should have to him or her, and •his or her heirs and assigns, all their respective properties, real •and personal, then acquired or thereafter to be acquired; and Ireland further agreed to pay the complainant, upon the execution of the agreement, $1,500, which she was to accept in full satisfaction for her support and maintenance or alimony during her coverture. Upon the execution of this agreement, Ireland paid to complainant $1,500, in part performance of the understanding, and the parties lived apart to the death of Ireland, and, •to that time, in all respects, performed the agreement.
The defendants now claim that the contract, thus made and performed, will be sustained in equity, as a release of dower in the defendants’ land. At law, up'on the principle of mutual disability and upon the presumption that the wife is sub potestati vim, a husband and wife may not contract with each other, and a wife cannot execute a valid release of dower, in the real estate of her husband, in any other way than by joining with him in a conveyance to a third person. Carson v. Murray, 3 Paige 503; Emery v. Neighbour, 2 Hal, 142.
The statute of this state, leaves the ability of the husband and wife to contract, as it was at the common law. Its language is as follows: “ Nor shall anything herein enable the husband or wife to contract with or sue each other, except as heretofore.” Rev. p. 639 § 14. In construing this language, Chief-Justice Beasley, In Woodruff v. Clark, 13 Vr. 198, says that its “ object was to .leave the husband and wife, touching their capacity to bargain ¡.together, on the ancient footing of the common law. The clause is virtually a legislative declaration that, as heretofore, they may -enter, inter sese, into equitable agreements, but not into legal . agreements. It was obviously intended that the court of equity *314should, as it had always done prior to the amplification of the rights of the wife, exercise a supervision over the engagements of married persons.”
Courts of equity deal with agreements for the separation of husband and wife with the greatest caution, because the contract of marriage is solemn, sacred, and useful to maintain inviolate.
The authorities are uniform in holding that a provision, by any instrument, for the separate maintenance of the wife in the event of any future separation, whether with or without the-intervention of trustees, will not be enforced either at law or in equity; but that where such agreements are made with trustees and operate in prcesenti, although they will not be enforced as to the separation, they will, as a general rule, be enforced in equity so far as to compel the husband to perform the accessorial agreement for the maintenance of the wife. And a number of cases hold that these last-mentioned agreements, when made directly between husband and wife, will be enforced against the-husband. Calame v. Calame, 10 C. E. Gr. 548.
In the last case cited, the Court of Errors and Appeals of this-state, enforced, against the husband, his agreement for maintenance as part of a decree of divorce, where the agreement was-made directly between husband and wife.
The chief-justice, who delivered the opinion of the court in the case, says: “ I do not mean, however, that every agreement which is thus made will be supported. The court should undoubtedly look into these arrangements and their surroundings but when it appears that the separation of the wife, forming the-ground-work of the agreement, was justifiable, and the provision, is suitable, to this extent it is, in my judgment, safe to say that the contract should be upheld.”
The object of the plea in the case befisre me is to enforce an agreement made directly between husband and wife, against the-wife. Conceding, for the purposes of this case, that the court may countenance such enforcement, it - is clear that it should do-so only in a case which, after a cautious examination of all the circumstances which surround and enter into the agreement,. *315appears to be fair to the wife, and also to be supported by some equity in favor of the husband or those who claim under him.
In Farmer v. Farmer, 12 Stew. Eq. 215, Vice-Chancellor Van Fleet says: “A wife may bestow her property by gift on. her husband, or she may make a contract with him. which will be upheld in equity, but such transactions are always examined by courts of equity with an anxious watchfulness and caution and dread of undue influence; and, if they are required to give sanction or effect to them, they will examine the wife in court and adopt other precautions to ascertain her unbiased will and wishes.”
When a husband comes into court and asks for the enforcement of a contract that he has made directly with his wife, or when those who stand in his place so come, the burden is upon, him, or them, to show the fairness of the agreement and the equities which call for its enforcement. The wife is presumed to be sub potestati viri, and the affirmative is with the husband, and those who represent him, to show that the contract was fair, open, reasonable, and well understood. Cowee v. Cornell, 75 N. Y. 91. The plea must aver that which the husband must prove affirmatively to show a complete equitable defence. . Story’s Eq. FI. § 665.
The agreement of the complainant and her husband to live apart, merely because of unhappy differences, on the ground of public policy, affords no consideration, either in law or equity, for her surrender of interest in his property. It does not appear that the complainant had property in which her husband had rights which he could surrender. So that his release would constitute a consideration for hers. The $1,500, which was paid toller upon the execution of the agreement, was given and received in satisfaction “for her support and maintenance, and of all alimony during her coverture,” not for a release of dower. After the payment of this money, although the husband lived for more than twelve years, the wife kept her agreement, and did not ask him for support and maintenance.
What substantial benefit, then, which can be held to be a consideration for the release of her dower, did the wife derive from *316the agreement? I fail to perceive any. The proposition is resolved to this: that a court of equity shall compel the wife to give up a valuable estate in her husband’s lands solely because she agreed with him, when she was under his control, to do so. Such a proposition is not addressed to good conscience or otherwise possessed of equitable features, which will require or secure its maintenance in this court.
But the plea is subject to the further criticism that it does not aver that the complainant understood that she was relinquishing her dower in her husband’s lands. The language of the agreement is general, and does not directly suggest that it is intended to include a release of dower.
Counsel for the complainant, upon the argument of this case; insisted, and with some force, that the language of the agreement is not sufficiently clear to enable a court to construe it as a relinquishment of dower. Hid Mrs. Ireland understand that she was agreeing to release dower ? I think that the averments of the plea should show that she did. The language of the agreement is so general that it is impossible for me to hold it to be of such a character that she must be presumed to have understood it as a release of dower.
The result of my consideration of these two objections is that Mrs. Ireland may unwittingly have agreed to release her dower without adequate compensation for so doing'. The plea should have shown that she understandingly agreed to give up her dower, and that she did so for adequate compensation, thus presenting to- the court for enforcement a fair and reasonable contract ; and also that such a contract was so acted upon by the husband, or those who claim under him, that a court of good conscience should require the wife to perform it upon her part.
The plea will be overruled, with costs.