I am in accord with the views expressed by the justice at Special Term respecting the construction to be given to the agreement entered into between the defendant, Augusta Andree (Brown) and Paul S. Brawn, prior to their marriage. Limiting the interpretation of that agreement to the subject of dower, and without'refer-\ ence to any question that might arise respecting an interest of the widow in the personal estate of her deceased husband., it seems to *205me that the agreement can only be construed as a relinquishment by ante-nuptial agreement of her right of dower in the real estate of her husband and the substitution of a money recompense for her relinquishment of that dower.
The agreement recites that for and in consideration thereof, and of certain sums of money to be paid to Augusta Andree by the party of the first part and other valuable considerations, she promised to marry the party of the first part, and it was agreed that if he died within three years, she should be paid by the executors of his will the sum of 3,000 Swedish crowns; if he lived five years, she was to receive 5,000 Swedish crowns, or the equivalent in American money, and after his death to be paid forty dollars a month for' her support until the division of his estate, “ when she is to be paid in full as her widow's dower in full''
I think this provision specifically relates to dower as such, and that the amounts to be paid to her under the provisions of the ■agreement were in commutation of dower. The testator did make provision by his will for the forty dollars a month. By its terms that provision was to continue for about twenty-six years, and if the widow were to receive dower in addition to this provision for so long a time, the'whole scheme of the will would be subverted, as it was all to be virtually in lieu of dower. The fact that the Court of Appeals declared this provision of the will to be invalid does not affect the construction to be given to the agreement. As I understand it, it relates to dower, and was intended to relate to that subject, and was a complete acquiescence by the intended wife in the acceptance of a sum of money in lieu of dower.
I think, however, that some provision should be made in the judgment to the effect that it shall not be a bar to the right of Mrs. Brown to assert any claim she may have to share in the personal estate of her deceased husband; and while the action is in partition and the judgment merely declares that the 3,.000 Swedish crowns, or its equivalent, and the sum of forty dollars a month from the time of the death of her husband until the actual division of the estate shall, be paid her in full for thirds, dowei:, and right of dower to all or any other interest described in the complaint, yet it might be claimed that it was an adjudication that all her interest in the estate was disposed of by the decree.
*206With such a provision inserted in the judgment, I am of the opinion that it should be affirmed.
Houghton, J., concurred.
Judgment modified as directed in opinion, with costs of appeal to defendant appellant. Settle order on notice: