The general proposition, that in a proper case, where equity requires it, this court will give effect as a court of equity to an ante-nuptial contract by which a woman, in contemplation of marriage, for a valuable consideration agrees to relinquish her distributive share of her intended husband’s estate if she survives him, was intimated in the former suit between the parties, and has since been expressly affirmed. Sullings v. Richmond, 5 Allen, 187. Tarbell v. Tarbell, Suffolk, March 1865.
But we are now met by the objection on the part of the defendant, that it would be inequitable to compel a specific performance of the contract by her, because there was a failure to perform it on the part of her husband. The contract contains a recital that it is made with the desire and purpose that suitable provision should be made for the comfortable maintenance of the wife, “ as far as may be beyond the casualties and contingencies to which men and business are exposed; ” and provides that the husband shall procure as soon as is practicable fifty shares of bank stock of the New Bedford banks, and immediately convey them to a trustee, in trust to pay the income to the husband during his fife, and afterward for the benefit of ■ the wife. It also provides that if the parties shall five for five years after marriage, the husband shall annually thereafter pay to the trustee $200, during their joint fives, to be held and disposed of in the same manner as the bank stock. It appears that the fifty shares of bank stock were not conveyed to the trustee for nearly four years after the marriage, and that the payments of $200 a year were not made during the lifetime of the husband; and no sufficient reason or excuse for the omission appears in evidence.
*238The bill, therefore, seeks to enforce the performance by one party, of a contract which has been broken by the other. And the first ground taken in support of the plaintiffs’ claim is, that the contract became valid and obligatory upon the parties when the marriage took place; that the covenants of the husband, which were all executory, and not the performance of them, were the consideration for the wife’s agreement. We do not think the terms or the intent of the contract will admit of such a construction. The declared intent was to secure a maintenance for the wife “ beyond the casualties and contingencies to which men and business are exposed.” Only the punctual performance of the stipulations in her favor could give the security against those casualties and contingencies to which she was entitled. The language of her covenant is, “ to accept the provisions herein undertaken to be made for her comfortable maintenance and support, when the same are duly and legally made, so as to become valid and obligatory, in the place of and as a substitute for dower or thirds,” &c. It is the provisions undertaken to be made, when duly and legally made, that she is to accept, and not the undertaking to make them; and it is when duly made, that is, made* according to the terms of the agreement, so as to give her during her whole coverture the security promised, that her contract to accept them becomes binding. It is no answer to say that equity would have compelled the husband to execute his covenants. She did not seek its aid. The question is, will equity compel her to adhere to a contract which has been broken by the other contracting party ?
It is then argued that time was not of the essence of the husband’s contract; that it has been substantially performed by him and his representatives; and that the delay in its performance did not prejudice her rights, or subject her to loss or danger of loss. But the court are of opinion that a delay for such a length or time, not accounted for on any ground of accident or mistake, was material to the rights of the defendant. The essence of the contract was, that certain amounts of property should be irrevocably devoted to her use, at times specifically designated, s» as to guard them against accidents to her husband’s fortuna *239She was subject to the danger of loss to some extent during the whole coverture; and for nearly four years had no security whatever. It was too late to attempt to create the fund after his death, and when her legal right to a share in his estate had become vested. True, she could now receive the whole amount to which she would have been entitled, if the contract had been performed; but she has been exposed to the whole risk which the contract was framed to avoid; and it is for her to elect whether she will now accept performance.
Nor is the evidence sufficient to show a waiver on her part of her right of election to treat the contract as violated and abandoned. The testimony is slightly conflicting, but we think the weight of it is in favor of the conclusion that she has not, at any time since her husband’s death, intended to surrender any rights in his estate which she was aware that she possessed, or acted in such a manner as reasonably to induce the belief on the part of the plaintiffs that she had such an intention.
Bill dismissed, with costs.