The issues raised by the pleadings in the suit in equity between the parties to the present action were, 1st, whether one of the considerations, referred to but not expressed in the antenuptial contract, was a promise of the husband to make, after the marriage, further and adequate provision for the maintenance of the wife, in the event of her surviving him ; 2d, whether the execution of the antenuptial contract by the wife was procured by fraud and misrepresentation of the husband. Those issues were submitted by the court to the jury in that case. The jury answered the second issue in favor of the plaintiffs, and the first in favor of the defendant. The record of that suit shows that the court thereupon, without a hearing upon any other question, entered a final decree dismissing the bill, with costs, and that that decree was not expressed to be without prejudice to an action at law.
The necessary conclusion is, that the adjudication of that case proceeded upon the ground that the husband had made, and had not performed, such a promise. The final decree in the suit in equity is therefore conclusive evidence of that fact in the present action. Bigelow v. Winsor, 1 Gray, 299, 301. Foote v. Gibbs, Ib. 412. Durant v. Essex Co. 8 Allen, 103. Same v. Same, 7 Wall. 107. Foster v. The Richard Busteed, 100 Mass. 409, 412.
The agreement of the wife not to claim any share in the husband’s estate was manifestly intended to be dependent upon his agreement to make provision for her; and he having failed to perform his agreement by any instrument executed in his lifetime, his representatives cannot maintain an action against the wife, for asserting the rights which the law gives her, in the absence of any such agreement, after his death.
*235As this point is decisive of the case, it is unnecessary to consider whether the wife under any circumstances can be sued at law upon a contract of this character. See Blackinton v. Blackinton, 110 Mass, 461; Jenkins v. Holt, 109 Mass. 261, and cases there cited. Exceptions overruled.