
    Sarah Gelzer v. Robert Gelzer, and Others.
    A covenant by a wife, prior to, and in consideration of the marriage, not to claim, or demand dower, or any other right, title, or interest, in the real estate of her husband, cannot operate as an estoppel against her at law; nor will it bar her of dower under the st. 27 Hen. 8, c. 10, s. 6, without a competent jointure : but. if she were of full age at the time, such an agreement will be enforced in equity, and the wife excluded both from dower, and a distributive share of her husband’s real estate, where he has died intestate ; although, it seems, she will still be intitled to her distributive share of the personal estate, under the act of 1791.
    Nothing less than a freehold estate, to commence.in possession at the death of the husband, and settled on the wife by way of jointure, will bar her of dower under the provisions of the st. 27 Hen. 8, c. 10, s. 6. vide P. L. 51.
    The complainant was the widow of Thomas Gelzer, who died intestate ; and this was a bill against his administrator, and distributees, to recover either her dower of the real estate of the intestate, or her distributive share of his real, and personal estate. The claim was resisted, on the ground, that the complainant, by a settlement made prior to, and in contemplation of her marriage, she being of full age at the time, had covenanted not to claim, or demand, dower, or any other right, title, or interest, in the real estate of her said husband. And it was contended, that she' was not only excluded from dower, and a distributive share of the real estate, by the terms of her covenant, but that she was also barred of any claim to a distributive share of the personal estate, under the act of 1791; inasmuch as her distributive share, was given by the.,., — . expressly, in lieu of dower, and she had elected to take her d^war^"^ by its equivalent, the- valuable consideration of marriage/^ 1 Faust, 27.
    ■The cause came on to be heard at Charleston, in January,«.86», before De Saussure, Chancellor, who decided, that she wfcs eluded by the settlement from both dower, and any right to eMíik * tributive share, of his real estate. His Honor held, however, i she was intitled to her share of the personal estate, and ordered distribution accordingly.
    The complainant appealed, and now moved to reverse so much of the Chancellor’s decree, as excluded her from all participation of the real estate; and the defendants also appealed from so much' ^10 ^eoree> as declared that the complainant was intitled to a distributive share of the personal estate.
   Johnson, J.

delivered the opinion of the Court.

The agreement, out of which- the question arises, was entered into before, and in contemplation of the marriage between the complainant, then Sarah Lewis, and the intestate, Thomas Gelzer; and it recites, that the said complainant had, il in her own right, an ample estate entailed and secured to her, of which the said Thomas would not take any benefit after her death in consideration whereof, and of the nominal payment of one dollar, she covenants, and agrees, that, if the said Thomas should die, she surviving, “ she will not. have, claim, or demand, or pretend to have, claim, or demand, any dower, or thirds, or any other right, title, interest, claim, or demand, of, in, or to, any of the messuages, lands, tenements, and real estate, whereof the said Thomas may have been seized during the intermarriage aforesaid.”

Under the statute 27 Hen. 8, c. 10, s. 6, which is of force in this State, P. L. 51, this contract cannot operate as a bar to the complainant’s right of dower, because, according to Lord Coke, nothing less than a freehold estate, to commence in possession at the death of the husband, settled upon the wife by way of jointure, would be allowed as a substitute, under the provisions of that statute : Co. Litt. 36 b: and here nothing is provided for the wife. Neither can such a covenant operate as an estoppel at common law. It does not profess to be a relinquishment; and moreover, she had, at the time, no interest upon which a relinquishment could operate. It can therefore bind, at law, only as an agreement not to claim, or demand, her dower, &c. But equity frequently regards that as done, which ought to have been done ; or will, when it is necessary, compel parties, seeking the aid of the Court, to do that, which in conscience they are bound to do.

The complainant was of full age, and under no legal disability to contract; the subject matter was legitimate ; and the consideration of marriage is sometimes said to be the highest known ,to the law: and I confess, that I have not been able to discover any rule, or principle, which discharges her from the obligation, which this agreement imposes. She had an ample fortune of her own, so tied up, that she could not confer it upon the husband ; and in consideration, that he would take her in marriage, she agreed not to claim her dower, or any right of inheritance in his estate. It is a contract without fraud,. and apparently of perfect equality. Both Atherley, and Roper, treat this question as one admitting of no controversy. A jointure, to operate as a bar to dower under the statute, must consist of a freehold estate ; but a woman, under no legal disability, may stipulate to substitute any thing she please in place of it. Atherley on Marriage Settlements, 511,1 Roper Husband and Wife, 480. There is nothing in the case of Hastings v. Dickinson, 7 Mass. 153, opposed to this view ; for the Chief Justice, Parsons, puts that case distinctly on the ground, that the condition, upon which the wife covenanted to renounce her dower, was not performed, and could not be performed, in consequence of the insolvency of the husband. The case of Glover v. Bates, 1 Atk. 439, turned upon the infancy of the wife, at the time when she entered into the agreement. She was therefore incapable of binding herself by an agreement, and nothing but a jointure, in conformity to the statute,'could bar her of dower.

Yeadon, for complainant.

Grimke, contra.

The appeal in this case must therefore be dismissed, and the decree of the Circuit Court affirmed ; and it is so ordered.

O’Neall, J., and Harper, J., concurred.

Decree affirmed.  