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The opinion of the majority of , the Court, Tenney J. giving no opinion, was prepared by

SheRley J.

— The statute of 1821, c. 40, 4> 6, provides, that the widow may claim dower in lands, tenements and hereditaments, of which the husband was seised in fee, either in possession, reversion or remainder, at any time during the marriage, except where such widow by her own consent may have been provided for by way of jointure prior to the marriage; or where she may have relinquished her right of dower by deed under her hand and seal. ■ The word jointure must have been used in its well known and established legal sense. As introduced by the statute of 27 Hen. 8, c. 10, <§> 6, the definition of a legal jointure was given by Coke, and the requirements to constitute one stated, in his commentary on that statute. Co. Lit. 36, b. It must be a freehold estate in lands or tenements secured to the wife, and to take effect on the decease of the husband, and to continue during her life at the least, unless she be herself the cause of its determination. As early as 1647, it was ordained by a colonial regulation, that every married woman, “ that shall not before marriage be estated by way of jointure in some houses, lands, tenements or other hereditaments for term of life,” shall have her dower. There does not appear to have been any modification or repeal of that ordinance in the revision of the statutes in Massachusetts in the year 1799. And the statute of 27 Hen. 8, c. 10, with *370the definitions and constructions appended to it by text writers and decided cases, and as modified by this ordinance, must be regarded as the foundation of the enactment in the statute of this State. It is true, that there are important differences in the law of jointure between the English statute and that of this State. By the former a jointure made in conformity to its provisions would not be binding on the widow, without her consent, if made before marriage; and also if made after marriage and assented to by the widow, after the death of her husband. But by the latter, no jointure could prevent the widow from claiming her dower, unless made before marriage and with the consent of the intended wife. There is however no authority in either of them for considering, that a legal jointure can be composed partly of a freehold estate and partly of an annuity not secured on any estate. It may be true, that the estate secured to the widow in this case by the ante-nuptial agreement or deed of the fourth of August, 1832, although limited durante viduitate, would have constituted a good jointure within the statute of this state, if the widow before her marriage had consented to receive it as such. But it is not necessary to decide this point; for it is not the estate alone, that she consents to receive as a jointure, and in satisfaction of dower. The deed recites, that “ the aforesaid rents tenements, and sums of money to be for her jointure and in full satisfaction of her' dowerand she covenants in consideration of the jointure aforesaid, composed of the estate and annuity together, never to demand her dower. And the Court cannot say, that she was provided for by way of jointure, that is, by an estate for life in lands or tenements, by her own consent before marriage.

It is .contended, that if the widow be not barred of her dower by the estate conveyed as a jointure, she is by her covenants in the deed. Marriage is a good consideration for ante-nuptial contracts, and they are binding upon the parties, when fairly made, although there be no trustee or third party named in them. Wood v. Jackson, 8 Wend. 9. Roane’s Ex. v. Hern, 1 Wash. C. C. R. 47. The widow in consider*371ation of the estate and of a bond providing for the payment of an annuity of one hundred dollars a year, “ agrees and solemnly obligates herself never to demand or receive, nor suffer any one for her or in her name to demand or receive, any dower or thirds in any property, lands, tenements, or hereditaments, which the said Vance may be seised or possessed of during his lifetime, or die seised or possessed of.” The history of the law shows the occasion of the enactment of the statute of 27 Hen. 8, c. 10, and exhibits the legal difficulties, which prevented the wife from barring . herself of dower by any acts of her own. These were, that no right could be barred until it had accrued. That no right to an estate of freehold could be barred by a collateral satisfaction. That a release before marriage could not be effectual, because at the time of making it, she had no title to dower, and the release could not bar a right, which accrued afterward. And during the marriage she had no legal capacity to execute one. The covenants cannot therefore at law be pleaded as a release, for the release itself would not be effectual. And it was so decided in Hastings v. Dickinson, 7 Mass. R. 153. An attempt was afterward made to make them effectual by way of estoppel; but the Court decided, that there could be no estoppel by an executory covenant. Gibson v. Gibson, 15 Mass. R. 106. And in that case the Court say, they have considered, whether the covenants might avail by way of rebutter, and conclude, that they were not extinguished by the marriage; but that they could not so operate in that case, if there had been a failure of consideration. In this case there is no failure of consideration. If the widow has not received the benefit of the consideration for her covenants, it is because she chose not to receive it. But it is only where there is a warranty of title, that covenants can operate to rebut or bar a future right not then in existence. Co. Lit. 265. McCrachen v. Wright, 14 Johns. R. 193. There is however another difficulty in considering the covenants as a bar. The widow has rejected the provision in the deed, and has neither taken the profits of the estate, nor received the annuity. The estate of her late husband has had *372the benefit of this rejeption; and has in effect received, by not being obliged to part with them, the income of the estate and the amount of the annuity; which must be taken into consideration in estimating the damages, which may be claimed for a breach of the covenants. It was said in the case of Gibson v. Gibson, that at most, the widow would be liable only in an action on the covenants for the difference between the value of the dower and the provision made for her by the deed. And it cannot be justly claimed, that she should lose the inr come of the estate and the annuity,, and still be deprived of her dower, by allowing the covenants to be pleaded by way of rebutter,

Judgment for demandant.

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