citation">54 N.H. 152.^*

The plaintiff now brings this suit to recover back money alleged to have been paid to her or for her benefit, in consideration of which she entered into a parol agreement to release her dower to him in said premises. The facts set forth, upon which the claim is based, are the same in substance as alleged in the suit in equity. It was remarked in that suit, that "if the plaintiff has paid money to the defendant, or to the administrator for her, and which she has received upon the faith of her parol agreement to release her dower, there would seem to be no good reason why he should not be allowed to recover back from her whatever she has received upon a contract which she now refuses to fulfil."

From the plaintiff's statement of his case, which the defendant admits is true, it appears that he had a claim against the estate of Henry L. Gordon, amounting to $4,042.16; that the administrator, under a license from the court of probate, sold the real estate for $5,000, at public auction, to the plaintiff; that he paid the administrator the difference between these two sums, being $957.84, and received a conveyance from him; that the money so paid to the administrator was accounted for by him on settlement of his administration account as assets belonging to the estate; and that, the estate not being in fact insolvent, there was a balance found in the administrator's hands, which was decreed by the judge of probate to be distributed to the heirs of the intestate, the widow, under the provisions of the statute, receiving her distributive share. It is quite clear that the purchase-money paid was the exclusive property of the estate. It is not even alleged that any part of it was on account of the sale of the defendant's right *Page 173 of dower in the premises. There were three ways by which the plaintiff could acquire her right. (1) The administrator, under the provisions of ch. 182, secs. 15 and 16, Gen. Stats., might upon application have obtained license, with the assent of the widow, to sell the whole real estate, including her dower and the reversion thereof, and the judge would thereupon have estimated the present value of her dower according to her age, which she would have been entitled to receive, and the balance would be assets to be distributed according to law. This course, either from oversight or from some other cause, they neglected to take. No attempt seems to have been made to include her right of dower in the premises sold; nor is any claim, made that she undertook to join in such sale without such license having been obtained from the probate court. (2) The second way for the plaintiff to have obtained the defendant's interest in said premises was by a separate purchase and conveyance from her for a stipulated gum. This course the parties did not see fit to pursue. (3) The third way to obtain it was by voluntary conveyance from her without consideration; — and this was the course he selected. It is alleged that it was agreed that if he would pay the estate what he was owing it — stated to be $4,042.16 — the widow, administrator, and guardian agreed that such proceedings should be had in the probate court that he could bid off the premises at $5,000, and the widow would release her dower. This promise on the part of the defendant was purely voluntary, and, considering the circumstances under which the land was conveyed to her husband, was no more than what was equitable and just; but, unfortunately for the plaintiff, she does not see fit to keep her promise. However inequitable her conduct may seem, the plaintiff clearly has no remedy. Her agreement to release was within the statute of frauds, and therefore no action can be maintained upon it: it was also without consideration, and therefore not valid. Suppose her husband's estate had been in fact insolvent: no part of this money could ever have been distributed to her, and it is quite clear this action could not then have been maintained against her. How, then, does the fact that the estate is solvent make any difference, when no part of the money was paid to her upon the contracts but by virtue of her status as widow of the deceased, as her distributive share in his estate? There was no agreement that the plaintiff would pay her any sum for her dower. He had, in the lifetime of the intestate, conveyed the premises to him in payment of his indebtedness to him, and upon his brother's assuming the payment of certain debts due from the plaintiff to others, which the intestate afterwards paid, and upon the parol agreement to reconvey upon the amount so due to the intestate from him, and so paid by the intestate to his other creditors, being repaid. Prior to the decease of his brother, the plaintiff had refunded the sum of $4,042.16, leaving the sum of $957.84 still due at his decease. Had his brother lived, undoubtedly the plaintiff would have received a reconveyance of the premises from him, including a release of the defendant's dower. But after his decease he undertook to adjust it in the manner above stated, and seems to have confided *Page 174 in the parol promise of the widow that she would release her dower upon the balance due to the estate being paid. That amount was paid in the way agreed upon, but, for some reason which does not appear, she declines to keep her promise. As the plaintiff paid her nothing for her right of dower, and never agreed to pay her anything, she is under no legal obligation to release to him, nor can he recover back what he never paid.

The origin of his troubles seems to lie in his resorting to an illegal way for securing his brother and other creditors. The conveyance was absolute, but was in fact intended to operate as a mortgage. If, then, the plaintiff had conveyed by way of mortgage, instead of by deed absolute upon its face, the defendant would have acquired no right of dower in the premises. The result only illustrates the difficulties that often surround one who undertakes to do what doubtless in this case was a proper thing, in a way which the law for the protection of creditors stamps as fraudulent.

Upon the facts as they now appear, the plaintiff is not entitled to judgment upon the report of the referee.

^* See Gordon v. Gordon, 55 N.H. 399.

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