This was a suit by the demandant, as the-widow of Isaac Vincent, to recover dower in a certain messuage, of which the tenant, as the executor of Vincent, is in possession. It is admitted that the demandant was the lawful wife of Vincent, that during the coverture he was lawfully seized of the premises described in the writ, and died seized thereof, and that the demandant’s demand to have dower assigned to her therein was duly made before the commencement of this suit. The tenant contends, that this suit cannot be maintained, for the reason, that, prior to the demand-ant’s intermarriage with Isaac Vincent, she duly executed an ante-nuptial contract with him and one Valentine Bradford, as trustee, by the terms of which she accepted a certain pecuniary provision therein made for her out of the estate of ner intended husband in lieu of doxyer.
*472It appeared, that, previous to the marriage, an indenture ■ between Isaac Vincent, of the first part, Valentine Bradford, of the second part, and the demandant, by her then name of Sarah T. Cushman, of the third part, was executed, by which Vincent covenanted with Bradford, that if the marriage took place, and the plaintiff survived him, he would cause to be paid and secured to Bradford, by his last will or otherwise, the sum of one thousand dollars, to be paid within ten months after his decease, and would also cause to be paid or secured to Bradford the further sum of five hundred and fifty dollars, to be paid to him yearly, during the widowhood of the demandant, to be paid over to her instead and in satisfaction of dower, and of all distributive share in his personal estate. Bradford covenanted faithfully to execute the trusts, and the demandant covenanted and agreed, that the sum of one thousand dollars being provided to be paid and actually paid, and an annual sum of five hundred and fifty dollars being secured and provided to be paid, should be in full satisfaction and bar of her dower in his estate, and should also be a bar to her claiming or having any part of his personal estate.
Isaac Vincent deceased, having made his last will and testament, of which the tenant was duly appointed executor. Upon the tenant’s assuming the trust of executor, he duly notified the demandant and Bradford, the traste.-, of his readiness to perform all the stipulations of the ante-nuptial contract. Within ten months after the decease of Vincent, the tenant paid Bradford, the trustee, the sum of one thousand dollars, which was accepted by him and tendered to the demandant.
Within the ten months also, the tenant executed and delivered to Bradford a bond, with sufficient sureties, for the faithful and prompt payment of the annuity of five hundred and fifty dollars during the widowhood of the demandant, which bond was also fully secured by mortgage; and the bond and mortgage were accepted by Bradford, as such' trustee, as sufficient security for the payment of the annuity.
Within one year from the decease of Vincent, the tenant paid the trustee the sum of five hundred and fifty dollars, *473pursuant to the, ante-nuptial contract, which was also accepted by the trustee and tendered to the demandant. Both sums, so tendered to the demandant, and not accepted by her, have been specially deposited in bank.
No reference was particularly made in the will of Isaac Yinccnt to the ante-nuptial settlement, but a general direction was therein given for the payment of debts and the performance of obligations.
At common law, a jointure made to a wife before or after marriage was no bar to her dower. By the statute of 27 Henry 8, c. 10, <§> 6, which had always been in force here before our revised statutes, no jointure is a bar of dower, unless it be a freehold estate in lands, tenements, or hereditaments, for the life of the wife at least, and which is to commence and take effect, in possession or profit, immediately on the husband’s death. The demandant’s action, therefore, would not be barred by the marriage settlement, either at common law, or by the statute of 27 Henry 8, c. 10. The defence to the action, therefore, rests wholly on the Revised Statutes, c. 60, §§ 8, 9. The eighth section of that chapter is taken mostly' from the statute of 27 Henry 8, c. 10. The provision as to the assent of the wife, and the mode of signifying her assent when she is under age, is adopted from the revised code of New York. The ninth section is also adopted from the New York code. By this latter section it is provided, that any pecuniary provision that may be made for the benefit of the intended wife, and in bar of her dower, shall, if assented to by her, as provided in the preceding section, bar her right of dower in all the lands of her husband. In regard to this section, the commissioners for revising the statutes say: “ The ancient distinction between real and personal estate is not much regarded by our present laws and usages, and it will often be found more convenient, and probably quite as secure for the widow, to have her income payable out of public stocks, or other personal estate, as to have it depend on the mnts of real estate.”
The only question in the present case, therefore, is, whether *474by the ante-nuptial contract any pecuniary provision was made for the benefit of the demandant, the intended wife, in lieu of dower, and assented to by her in the manner provided by the statute. If such provision was made and assented to, then, by force of the statute, it bars her right of dower, and she cannot maintain this action. If no such provision was made and accepted, then, of course, she is entitled to her dower, and this action is well brought.
On the part of the demandant, it is maintained, that no such provision was in fact made ; that by the marriage contract it was optional, on the part of the husband, whether he would pay or secure to the demandant the sums of money mentioned; that he was under no absolute obligation to do so, and in fact did not cause the sum of money mentioned to be paid or secured by his last will or otherwise, according to the provision of the marriage settlement; and, therefore, that the demandant is not barred of her dower, which could only be effected by actually paying and securing the money, as provided in the marriage contract.
These positions, on the part of the demandant, if well sustained in fact, would no doubt establish her claim. But the facts by no means warrant or sustain these positions. By the marriage settlement, the husband had no option or election, whether he would or would not pay and secure the sums stipulated. He absolutely and unconditionally covenanted with the trustee, that he would by his last will or otherwise cause to be paid and secured, for the intended wife, the sums stipulated. The demandant expressly assented, that such sums, being paid and secured, should be in bar of her dower. The husband covenanted, that he would by his last will or otherwise cause the money to be paid and secured. He made no express or particular provision by his will. But it was not necessary that provision should be made by will. Any other mode was just as effectual. All that this marriage contract required, and all that the statute requires, is, that the pecuniary provision, which the intended wife assents to instead of dower, should be actually and effectually secured to *475her. In the present instance, the indenture, constituting the marriage contract, was of itself a complete provision within the statute, and clearly fulfilled and accomplished the covenants on the part of the husband. This indenture absolutely bound the husband and his estate, and could be fully enforced against the latter in the hands of his executor. As there was ample estate, the husband did, therefore, in fulfilment of his covenant to cause the money to be paid and secured by his will or otherwise, cause it actually to be done by this indenture itself. In fact, the executor, admitting his liability, has fulfilled the covenant of the husband, to the letter, by paying and securing to the trustee, for the benefit of the wife, the sums which she assented to take in lieu of dower. The case, therefore, is clearly within the statute, and the demandant’s claim of dower is barred by the pecuniary provision made for her benefit, and assented to by her; and, consequently, according to the agreement of the parties, a nonsuit must be entered.