This is an action of assumpsit against the administrators of an insolvent estate. It is brought by the widow of *190the intestate, to recover a part of the proceeds of the sale of certain real estate sold by the administrators, on the ground that she had an equitable right of dower in the estate, and that the defendants had agreed to pay her the proportion of the proceeds which the value of her right of dower bore to its whole value.
If her claim can be supported, it must be upon the ground of strict right. It appears by the agreed statement of facts, that at the time of the sale, and when the contract with her was made, the defendants did not understand or believe that she had any interest in the estate, a share in the proceeds of which she now seeks to recover; that they so informed her;.that the sale was made, and the proceeds applied to the settlement of the insolvent estate, without any expectation that any part belonged to her; that she did not join in the conveyance, and made no claim upon the defendants for a period of more than six years.
If we look at the written evidence of the contract, it does not in its terms include the lands in question. They were lands of which the intestate was in possession under a contract with the city of Boston. The city had agreed to convey them to him or his assigns upon payment of the purchase money in instalments at certain fixed times, but with the express condition that upon failure to make any payment for the space of sixty days his rights under the contract should be ended. At the time of his death one instalment was in arrear, and the sixty days grace were within four days of expiring. One instalment was not yet payable. The plaintiff agreed with the defendants that all the lands belonging to her husband’s estate should be sold, and that she would release her right of dower upon receiving from the purchasers its estimated value, according to the Wigglesworth tables. She had no right of dower in lands of which her husband was never seised. By the literal import of the contract, therefore, as well as by the understanding of the parties to it, the demand which she now makes was not embraced in its provisions.
The case of Reed v Whitney, 7 Gray, 533, which is chiefly *191relied on by the plaintiff’s counsel, differs materially from the case at bar. In that ease, the intestate had paid the purchase money, and had become fully entitled to a conveyance of the land in his lifetime ; and it was held that, under the provisions of Rev. Sts. c. 74, §§ 8-14, the widow was entitled to be a party to a suit in equity, to procure a conveyance of the land which should have the same effect in establishing her right of dower as if it had been made to her husband before his death. The decision was based upon the language of the statute, and upon the principle that equity will regard as done that which for a valid consideration the parties have agreed to do.
But in the present case, if we were to interpret the contract at law as including all equitable as well as legal interests, the plaintiff had no right under the statute to have any conveyance made for her benefit, at the time she made the contract with the defendants. The city of Boston could not have been compelled to convey the land to any person, because by the express terms of their contract their obligation to do so had been discharged. If they consented to waive their strict rights, and to convey to the appointee of the administrators, this was ex gratia merely, and created no new interest in the plaintiff. The death of her husband did not prevent the forfeiture, which nothing but the payment of the money within sixty days from the time it was due could avert. On the expiration of the sixty days the right was extinguished.
But farther, we think the doctrine of Reed v. Whitney has no application to a mere executory contract for the purchase of land, not executed at the death of the contracting party, and to the completion of which the widow was not bound. Such a case is not within the language or intent of the statute.
It is also worthy of consideration that, by the terms of the contract, the land was to be conveyed to Mr. Lobdell or his assigns. If he had completed the contract, he might have exercised the election so as to deprive his wife of any right of dower. The time for making the election had not arrived when he died; and if the duty and the right to complete the contract and make *192the further payments devolved upon his personal representatives, the election to whom the conveyance should be made would likewise vest in them. Judgment for the defendants.