will. But as to real property, the wife" or the husbands can not devise the same so as to deprive the other of his estate by curtesy or of her right of dower given by the statute; the husband's or wife's power of testamentary disposition being limited by the statutory rights which the surviving spouse may have in the property of the other. Even though the wife has been empowered to

act as a feme sole, she can not by will dispose of all of her property to the exclusion of her husband.10

§ 623. Husband or Wife May Consent to the Will of the Other: General or Specific Consent.

Although one spouse may have a statutory interest in the property of the other, yet the rule is that such right may be waived, the statutes generally providing that the husband or wife may in writing consent that the other dispose of his or her own property as if unmarried." At common law a general consent by the husband that his wife could make a testamentary disposition of property in which he had an interest was not sufficient, his consent was required to the particular will in question.12 Such consent is not in the nature of a conveyance, but only a waiver of statutory rights.18 And consent to a particular will has been held not to be a waiver as to a subsequent will which made no change in

for the use and support of the family is such a limitation on testamentary disposition as to virtually prevent the husband from willing away from his wife anything where the estate does not exceed this amount. Estate of Miller, 158 Cal. 420, 111 Pac. 255.

The husband's statutory right to a distributive share in his wife's estate vests on her death in case she dies intestate or no provision is made for him by her will. -Hayes v. Seavey, 69 N. H. 308, 46 Atl. 189.

10 Cunningham v. Cunningham's Exr., 140 Ky. 193, 130 S. W. 1075. 11 Barry v. Barry, 15 Kan. 587, 590; Hanson v. Hanson, 81 Kan.

305, 105 Pac. 444; Erickson v. Robertson, 116 Minn. 90, Ann. Cas. 1913A, 493, 37 L. R. A. (N. S.) 1133, 133 N. W. 164; Beals' Exr. v. Storm, 26 N. J. Eq. 372; Steward v. Middleton, (N. J.) 17 Atl. 294. See, ante, §§ 253, 254.

During the period from 1865 to 1868 a married woman could devise away from the husband her entire estate without his consent. -Bennett v. Hutchinson, 11 Kan. 398.

12 2 Bl. Com. *498; Rex V. Bettesworth, 2 Strange 891; Cutter v. Butler, 25 N. H. 343, 57 Am. Dec. 330.

13 Silsby v. Bullock, 10 Allen (Mass.) 94.

the legacy in favor of the consenting party, but which made other dispositions as to the remainder of the property. A husband might freely waive his rights in favor of his children, but not for the benefit of others, or for some purpose he thought not deserving. In such a case the husband can elect to take the property which the law grants him, but he must then forego any claim under the will.14 There is authority, however, that under a statute which in general terms allows a husband or wife, with the consent of the other, to bequeath more than one-half of his or her property from the one so consenting, a general consent to will is sufficient, and it need not be to a particular will.15

§ 624. The Same Subject: Nature and Effect of Consent.

The consent, in the absence of estoppel, must be in writing or an oral consent entered by record. 16 Unless required by statute, the consent need not be attested by subscribing witnesses.17 No consideration is necessary to support the consent of a husband or wife to the disposition by the other of his or her property.18 Where a

14 Kelley v. Snow, 185 Mass. 288, 70 N. E. 89.

15 Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541.

16 Steven's Estate, 163 Iowa 364, 144 N. W. 644.

See 253 as to consent or election.

17 Neuber v. Shoel, 8 Kan. App. 345, 55 Pac. 350.

18 Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541; Carmen v. Kight, 85 Kan. 18, 116 Pac. 231; Erickson v. Robertson, 116 Minn. 90, Ann.

Cas. 1913A, 493, 37 L. R. A. (N. S.) 1133, 133 N. W. 164.

A written agreement between husband and wife by which each released to the other interests in real property is void, being contrary to section 3609, R. L. 1905. However, the consent of the husband to the will of the wife disposing of her real estate is not void, though given in the performance of a void agreement.-Erickson v. Robertson, 116 Minn. 90, Ann. Cas. 1913A, 493, 37 L. R. A. (N. S.) 1133, 133 N. W. 164.

valid consent has been given, after the death of the other such consent is binding although the consenting party was not named as a beneficiary under the will of the deceased spouse, such consent not being conditional upon receiving benefits under the will.19 The consent, when freely and fairly executed in compliance with the statute, is irrevocable.20

The consent of one spouse that the other may devise or bequeath more of his or her property, than otherwise would be authorized by law, is not regarded as part of the will and need not be admitted to probate.21 But the mere signing by the survivor of a petition for letters testamentary is not such a formal consent as is required by the statute.22 Where there is no manifest intent to devise property which by statute goes to the surviving spouse, such survivor is not put to his or her election of taking either under the will or under the statute, but may claim under both.23

19 Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444.

20 Chilson v. Rogers, 91 Kan. 426, 137 Pac. 936. See, ante, § 254. 21 Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541.

22 Estate of Frey, 52 Cal. 658; Tyler v. Wheeler, 160 Mass. 206, 35 N. E. 666.

A widow by applying for and receiving letters testamentary and by claiming the will, is not deemed to have renounced her right to one-half of the community which the law gives her, as such interest is vested in her at her husband's death unaffected by any attempted testamentary disposi

tion on his part.-Estate of Frey, 52 Cal. 658. See, also, Morrison v. Bowman, 29 Cal. 337; Estate of Silvey, 42 Cal. 210; Smith v. Olmstead, 88 Cal. 582, 22 Am. St. Rep. 336, 12 L. R. A. 46, 26 Pac. 521.

23 Beard v. Knox, 5 Cal. 252, 254, 63 Am. Dec. 125; Morrison v. Bowman, 29 Cal. 337, 348; Estate of Gwin, 77 Cal. 313, 19 Pac. 527; Estate of Redfield, 116 Cal. 637, 643, 48 Pac. 794.

Under the Kansas Gen. Stats., 1909, § 9811, a husband may devise one-half of his estate, including exempt property, away from his wife where there are no children, even though she elects not

§ 625. Antenuptial Agreements.

24

Generally speaking, the personal rights, duties and obligations arising out of the marriage relation are those fixed and determined by law, irrespective of any antenuptial contract to the contrary. As to property rights, however, the rule is different. Although property rights of the husband and wife are fixed by statute, yet by an antenuptial agreement either may waive rights in the property of the other thereafter to be acquired by marriage, or fix and determine their respective rights.25 Such agreements are not contrary to public policy and will be enforced in equity,26 unless contrary to some express stat

24 Harrison v. Trader, 27 Ark. 288; Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1; Hair v. Hair, 10 Rich. Eq. (S. C.) 163; Powell v. Manson, 22 Gratt. (Va.) 177.

25 Smith v. Chapell, 31 Conn. 589; Becker v. Becker, 241 Ill. 423, 26 L. R. A. (N. S.) 858, 89 N. E. 737; Unger v. Mellinger, 43 Ind. App. 524, 88 N. E. 74; Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; Hanley v. Drumm, 31 La. Ann. 106; Hosford v. Rowe (Hosford v. Hosford), 41 Minn. 245, 42 N. W. 1018; White v. White, 20 App. Div. (N. Y.) 560, 47 N. Y. Supp. 273; Deller v. Deller, 141 Wis. 255, 25 L. R. A. (N. S.) 751, 124 N. W. 278.

It is held an antenuptial contract must be delivered or may be declared void. Slingerland v. Slingerland, 109 Minn. 407, 124 N. W. 19.

The common law rule that an executory contract between a man and woman is invalidated by their subsequent marriage does not apply to antenuptial contracts in contemplation of marriage.-Cannel v. Buckel, 2 P. Wms. 243; Andrews v. Andrews, 8 Conn. 79; Paine v. Hollister, 139 Mass. 144, 29 N. E. 541.

See §§ 301-309 as to the right of married women to devise or bequeath property.

See §§ 251, 252, 310, as to community property, rights of dower, curtesy and homestead.

See §§ 535-540 as to implied revocation of a will by marriage, or marriage and birth of issue.

26 Andrews v. Andrews, 8 Conn. 79; McGee v. McGee, 91 Ill. 548; Moore v. Harrison, 26 Ind. App.