It seems to be well settled that an ante-nuptial contract, which is not to be performed during the coverture, is not discharged by the marriage of the parties to it, even at law. Milbourn v. Ewart, 5 T. R. 381. Gibson v. Gibson, 15 Mass. 111. Miller v. Goodwin, 8 Gray, 543.
We can have no doubt that, fairly construed, the agreement between the petitioner and her husband, made before marriage, was intended not only to bar her claim for dower, but for any distributive share of her husband’s estate..
Such an agreement would be no bar to dower at common law, unless the covenants could operate by way of rebutter. Hastings v. Dickinson, 7 Mass. 153. Gibson v. Gibson, 15 Mass. 106. Whether it constitutes a bar to dower under the statute, is not now before us for decision. It would undoubtedly have been effectual, if the terms of the contract had been perforated.
*191But as an answer to the claim of the widow to a distributive share of the personal estate, there are difficulties which we think insuperable. If the covenant not to claim any part of the personal estate could be construed as a release, a release of a claim which has no present existence is inoperative. The contract being executory, cannot avail by way of estoppel. It could not be broken, so as to create any cause of action upon it, until after a decree of distribution should have been made.
It was said in Gibson v. Gibson, that a covenant not to claim dower would be effectual by way of rebutter, to avoid circuity of action, only if there were shown to be no inequality between the value of the dower, and the sum for which the claimant would be answerable in damages for breach of the covenant.
But there is one broad distinction between the right of a married woman to dower, and her right to a distributive share of personal estate. An inchoate right of dower is an incumbrance on land during the life of the husband, which affects his power of disposal; while personal estate is wholly subject to his control. As a question of damages to the husband or his administrator, it might be difficult to define the injury sustained by reason of one person rather than another, becoming entitled to a share of personal estate not given by will. When the contract which we are considering was made, the right of a husband to dispose of his personal estate by will was wholly independent of the wife. The change in the statute law which has given to the wife the right to waive the provisions of her husband’s will and, within certain limitations, to take the same share of his estate as if he had died intestate, created a relation to his estate which did not exist at the date of the contract. As he made a will, the case at bar would not have arisen, but for this statute; and the statute has made no provision as to the effect of marriage settlements or contracts.
The right of a person entitled to share in the personalty, under a decree of distribution of an intestate estate, is a peculiar one. It is not a right to any specific property of the intestate. It arises after the estate has been settled, and is not open to any set-off or other defence arising from contracts with the decedent *192Hancock v. Hubbard, 19 Pick. 167. The powers of the court of probate are for the most part defined and fixed by statutes, and do not extend to a general decision of controverted questions affecting the settlement of estates. It has no equity powers, except where they are conferred by statute; and its rules of property and of evidence, with the like exception, are those which govern courts of common law. Eveleth v. Crouch, 15 Mass. 307. Grinnell v. Baxter, 17 Pick. 383.
It would be impossible to determine in advance, in many cases, who would be interested in the performance of a covenant by a wife to claim no distributive share in her husband’s estate, at the time of the death, when the covenant would first become operative. The husband and wife might be of kin to each other; and before his death the wife might become his sole heir; or she might become the representative of those for whose benefit the contract was intended. Suppose, as an extreme case, that there were no kindred, would such a contract by the wife so far conclude her rights as to enable the Commonwealth to claim by escheat ? Or suppose an intestate to have bought out the right of all his nearest of kin, according to the statute of distributions, in his lifetime, what decree could be entered in the probate court? Could the judge of probate pass over all those whom the statute entitles to a decree of distribution, and look for the next more remote kindred ? or what would become of the estate?
It is noticeable that not a single case has been cited, in which a contract of this kind has ever been held, at law, to bar the right of the wife. Yet a large number of cases have been cited in which courts of equity have recognized the validity of the contract, and enforced its performance. But equity proceeds upon the doctrine of enforcing a specific performance; in the application of which it is immaterial to whom the legal interest descends, because the contract raises a trust, of which the court can compel the execution. A court of equity can also determine whether the party seeking to enforce the trust is within the equity of the original contract. Neves v. Scott, 9 Plow. (U. S.) 196
*193At law, a case somewhat analogous would be that of an agreement among heirs, upon a sufficient consideration, that one or more of them should relinquish his distributive share of an estate; or an express assignment of the share of one to another, or to a stranger. It would scarcely be suggested that such a contract would alter the power or the duty of the probate court in making a decree of distribution. In the case of Trull v. Eastman, 3 Met. 123, it was indeed held that a conveyance by one heir to another of his expectant right in his father’s estate, made on sufficient consideration, with the father’s assent, by deed with covenants of warranty, was effectual to pass the real estate; the covenant operating by way of rebutter, and being a covenant that runs with the land. But it is obvious that the reasons for that decision would not apply to personalty.
Upon these considerations, the court are of opinion that Mrs Sullings is entitled to a decree in the probate court for the pay ment of her distributive share in her husband’s estate, without reference to the ante-nuptial agreement set forth in the report, and that the remedy of any parties interested in the enforcement of that agreement is in equity. Decree reversed.*
A similar decision was made, and for the same reasons, in the case of Eliza A. Tarbell v. Edmund Tarbell, which came up in Middlesex, January form 1863. P. W. Chandler & G. O. Shaltuck, for the petitioner. W. P Webster, for the respondent.