
    BANNAN’S APPEAL.
    X. An ante-nuptial agreement provided that a certain sum should be paid annually during the life of the wife in lieu of dower. The will gave the executor unlimited power of sale and investment. Held not to be such a violation of the ante-nuptial agreement as would justify the wife in rescinding it.
    2. The wife had the rights of á creditor of the estate against improper investments of the executor.
    3. The rights of creditors are superior to the right of the testator to squander his estate by conferring improper powers on the executor.
    Appeal from the Orphans’ Court of Schuylkill County: No. 135 January Term, 1877.
    On October 10th, 1873, Benjamin Bannan, now deceased, a widower with two adult daughters, made an ante-nuptial agreement with Anna M. Gallagher, by which he, Benjamin Bannan, agreed that said Anna M. Gallagher should receive from his estate after his death the sum of one thousand dollars per annum, that five thousand dollars should be paid to her appointee by will, and that her son by former marriage should receive the interest of $5,000 until he was twenty-five years of age; in consideration of the payment whereof, 'Anna M. Gallagher released all, claims for dower. On October 16th, 1873, said Benjamin Ban-nan and Anna M. Gallagher were married. On January 23rd, 1875, they agreed to live separate, Benj. Bannan agreeing to pay her an annuity of $1,00'0 per annum during his life, in lieu of all claims for support during his lifetime. Benjamin Bannan died on July-31st, 1875, having first made his last will and testament, dated January 9th, 1875, in which he devised all his real and personal estate to his executor, Thomas B. Bannan, in trust to make the payments set forth in the ante-nuptial agreement, and to pay the residue of the net annual income to his two daughters in equal parts. He gave to the executor the power to sell all his estate and invest in Government or State loans, mortgages, ground rents, “stocks of sound incorporated companies,” or in the purchase of productive real estate, and again to sell and dispose of the same, and invest the proceeds toties quoties, at the discretion of the executor. The personal estate amounted to over $70,000 and then were also two valuable pieces of real estate. The executor filed his first account on August 1,1876, the receipts amounting to $10,428.25, of which over $5,500 was of the principal of the estate and the balance income. The payments amounted to $10,-305.03 of which $2,059.13 was to the daughters of decedent. Nothing was paid to the widow. On October 18, 1876, Anna M. Ban-nan filed her refusal to take under the will and notified the executor thereof. On Nov. 6, 1876, she presented a petition to the Orphans’ Court of Schuylkill county, setting forth: 1st. Benjamin Bannan died seized of certain real estate. , 2nd. That Thomas B.. Bannan is the sole executor of said decedent and also sole devisee to carry out certain trusts. 3rd. That she is the lawful widow of said Benjamin Bannan, and had entered into an ante nuptial agreement with him which the provisions of his will rendered it impossible to cany out, and has elected to take her dower. That under the intestate laws she is entitled to one-third of the rents, issues and profits of the real estate. She then asks for an inquest m partition. A rule upon the executor and his cestuis que trusts, to show cause why an inquest in partition should not be awarded was granted by the -Court.
    On November 20,1876, the executor and his cestuis que trusts filed their answer denying that the will of Benjamin Bannan had rendered the ante-nuptial agreement impossible to carry out, and denying the right of the widow to have an inquest of partition awarded. On December, 18, 1876, the Court discharged the rule and refused the writ of partition. On December 20,1876, the petitioner Anna M. Bannan appealed to the Supreme Court, assigning as error the refusal of the Court to award a writ of partition.
    
      Hughes and Farquhar, for appellant,
    argued; 1st. That the provisions of the will rendered it impossible to carry out the ante-nuptial agreement. The $5000 payable to Mrs. Bannan’s appointee, may not be payable for fifty years. The executor has given no security; and has wasted the assets by paying out part of the principal to the daughters of B. Bannan. That by his refusal and neglect to pay amounts agreed upon, the executor has repudiated the agreement, and such payment being a condition precedent, her right of dower was not barred unless such payment was made in a reasonable time, ■ and before payment to other claimants whose rights were inferior to hers.
    A release can only operate on a present right. Hastings vs. Dickinson, 7 Mass. 155; Vance vs. Vance, 8 Shepley 364; Grogan vs. Garrison, 15 Am. Law Register 652. If a condition precedent be not performed, or the party disables himself from performing it, the other party may rescind the contract. 2 Chitty on Contracts, (Ed. 1874), 1090; Shaw vs. Turnpike Co., 3 Penrose and Watts 445; Reybold vs. Vorhees, 6 Casey 116. When decedent does not fully perform his ante-nuptial agreement, the wife’s right of dower is not barred. Bliss vs. Seldon, 7 Barbour 152; 8 N. Y. Reports, 31; Hastings vs Dickinson, 7 Mass. 155. The party in. jured may rescind the ante-nuptial contract if there is any breach of good faith. Kline vs. Kline, 7 Smith 120. Marriage as an equitable consideration'is earned farther in favor of the wife than the husband. Bosler vs. Bosler, 10 S. & R. 303; note. .
    
      E. O. Parry, for appellees,
    argued that appellant was barred by the release from presenting her claim for dower. Clancy Rights of Women 219, 220; 221-223. Any security-taken by an adult in lieu of dower will bar her right. Dyke vs. Rendall, 13 Eng. L. & Eq. Rep. 410; Andrews vs. Andrews, 8 Conn. 79; Ellmaker vs. Ellmaker, 4 Watts 89; Horton vs. Cook, 10 Watts 124; Rudolph’s Appeal, 10 Barr 34; Gangwere’s Estate, 2 Harris 419; Whichcote vs. Lyle’s Ex., 4 Casey 73; Dillinger’s Appeal, 11 Casey 357.
    Appellant is a creditor of the estate, and her claim is a lien against it. If there be danger of waste, she could apply to the Court for security, or the removal of the executor. But she cannot rescind her contract, her remedy is an action ’on it. The executor is willing to pay the annuity under the contract.
   The Supreme Court affirmed the decree of the Court below on April 1st, 1878, in the following opinion:

Per Curiam.

We do not see that the will of Benjamin Bannan is so repugnant to the ante-nuptial marriage settlement with Mrs. Bannan as in its effect to be a rescission, or to enable her to rescind it and claim the estate at law. She stands as a creditor under the marriage contract, which was for a valuable consideration, marriage being such, and consequently she has all the rights of a creditor to secure herself against waste or mismanagement, and to prevent a disposal of it by the executor injurious to her interests as a creditor. Clearly the Orphons’ Court can by a proper order protect her rights against illegal and improper investments, if such be allowed by the will. The rights of creditors are superior to the right of the testator to squander his estate by conferring improper powers on the executor.

Decree affirmed and the costs are directed to be paid out of the estate, and the appeal dismissed.  