I concur with Mr. Justice Lambert. An analysis of the. ante-nuptial agreement shows that it is fairly .divided into two parts. The first part contains the mutual .promises of the parties to the •agreement, and the second part relates to the agreement on behalf of the proposed husband. The first part witnesseth “ that for and in consideration of this agreement and certain sums of money to be paid to her by the said party of the first part (proposed husband), and other valuable considerations, the said party of the second part (proposed wife) promises to marry the said party of the first part some day before July 15, 1901.”
Here is a distinct promise by the proposed wife to marry, and this promisé to marry is based upon the consideration of the money therein provided to be paid to her. This is the only promise that she makes in the agreement. Whatever rights she would have as a wife were preserved to her by the agreement, and certainly in any part of the agreement which contains her promise there is no relinquishment of any legal right to which she would be entitled upon her marriage.' How, the second part of the agreement makes provision for the sums of money which were to be paid to her, and which were a part of the consideration for making the promise of marriage. Under that agreement she is to be entitled to receive a certain sum of money upon the death of the husband. Subsequent to his death she is entitled to receive an annuity of forty dollars per month, to. continue during the time that the husband’s estate is undivided, “ when (at the time of the division of the estate) she is to be paid in full as her widow’s dower in full.” I do not think that this language can be construed into an agreement to relinquish dower, or into an agreement that the payment of these various sums of money is to be considered in lieu of dower. Certainly, if this *204provision was in a will which purported to make provision for the testator’s wife, it could not be held to be a provision in lieu of dower, an acceptance of which would estop her from claiming dower after the period during which she was entitled' to receive the annuity. Turning to-.the will of the testator, as it existed at the time this agreement was made, the meaning seems to become apparent. The testator had intended to tie up' .his estate for a period of twenty-six years, during which time the income from his property was paid to his children in fixed sums per month. Undoubtedly, the intent was to provide for this annuity to his widow in lieu of her right to receive during the period that his estate -was-undivided a third of the income of the real property.-. Under the ante-nuptial agreement she was to receive a.sum of money upon his death. She was then to receive a certain annuity during the-time that the estate remained undivided; but upon the division of the. estate the annuity was to cease, because at that time she would be entitled' to her dower in his real property. I think that the only effect of the acceptance of the provision made for the Widow by the ■ ante-nuptial agreement would be to postpone her right of dower Until the .final division of the estate. It having been adjudicated that this will was invalid as suspending the vesting of the testator’s real property during a period not allowed by the- statute,* the estate became at once divisible, and the Widow’s, right to receive this annuity, ceased,, and she then became entitled to' her dower in the real property. • ■ .
I concur, therefore', in the modification of the judgment as-proposed by Mr. Justice Lambert.
See Brown v. Quintard (177 N. Y. 75); Real Prop. Law (Laws of 1896, chap. 547) § 32— [Rep.