
    *Mehitabel Hastings versus William Dickinson and Elizabeth, his Wife.
    A jointure, whether made before or after marriage, was no bar to dower at common law ; and no jointure is now a bar, within the statute of 27 H. 8, c. 10, (which has always been in force here,) unless it be a freehold estate in lands for the life of the wife, to take effect immediately on the husband’s death. Therefore, where, by a marriage settlement, the husband covenanted that the wife should have an annuity out of his estate, in consideration whereof, she covenanted not to demand dower in his estate, it was held that she was still entitled to her dower.
    This was a writ of dower, and was submitted to the opinion ol the Court, upon a state of facts agreed and filed.
    From the statement it appears, that the demandant was once the wife of Thomas Hastings; that during the coverture, her said husband was lawfully seised in fee simple of the land, of which his widow demands her dower; that during the coverture, he mortgaged the lands in fee to Elizabeth Balch, then sole, but since married to William Dickinson, and with him the tenants in this action; that on the death of the said Thomas Hastings, the said mortgage not having been discharged, the tenants entered, in right of the wife, for condition broken.
    It further appears from this statement, that previous to the mat riage of the demandant with her husband Hastings, a marriage settlement was executed by them and one Jacob Watson as a trustee. In this settlement, the demandant covenanted with her intended husband, his heirs, executors, and administrators, that, in consideration of the intermarriage, and of the provision made by him by the covenants and agreements therein after mentioned to be done and performed on his part, for her support in case of widowhood, never to demand, claim, or challenge any right of dower for her thirds in the whole of the estate, of which the said Thomas might die seised and possessed. And the said Thomas, in consideration of the premises, for himself, his heirs, executors, and administrators, covenanted with the demandant, and the said trustee, that if she survived him, she should have full right and povver to demand and receive in money of his executors or administrators six per cent, on one fourth part of all the estate, of which he should die seised and possessed, after the payment of all his debts ; or at the rate of one dollar by the week, if the said six per * cent, was not an equiva- [ * 154 ] lent, and this annuity to continue during her life. There were some other stipulations and conditions in the said settlement •vhich have no bearing upon the present case.
    
      And it was further agreed by the parties, that the said Thomas Hastings died testate, having made in his will ■ some provision for the demandant; that she has renounced that provision; and that his estate is insolvent, and insufficient to pay all his debts.
    If, upon these facts, the Court should be of opinion that the demandant is entitled to dower in the land described in her writ, the tenants agreed to be defaulted, and that judgment should be rendered that the demandant recover her dower with legal damages and costs ; otherwise the demandant agreed to become nonsuit, and that the tenants should have judgment for their costs.
    At the last October term, Hilliard, of counsel for the tenants, argued that this marriage settlement was a bar to the demandant’s action ; that it is a perpetual covenant, which the Court, to avoid a circuity of action, would construe to be a release or estoppel; and that the intermarriage did not discharge the covenant.  A rea sonable expectation or even a hope of a contingent interest is a foundation for a contract. 
    
    
      
       5 Bac. Abr. Covenant, A. — Ibid. Release, H. — 1 Cruise on Real Property. — Jointure, c. 1, p 201 —203.
    
    
      
      
        Marshall on Insurance, 89, 92, 219. — 4 Brown's Chanc. Rep. 506, in notis.
      
    
   At the November term of the present year in Suffolk, the action being continued nisi from the present term for advisement, the opinion of the Court-was delivered by

Parsons, C. J.

If the marriage settlement in this case is a bar to the demandant’s action, this effect must be derived from the supposed jointure settled on the intended wife before marriage with her consent, within the provisions of the statute of 27 Hen. 8, c. 10, which have always been in force here; or from her covenant never to claim or demand dower operatirg as a release.

As to the first ground, it is web known that at common law a jointure made to a wife, before or after marriage, was no' [ * 155 ] bar to her dower; because the dower, being a * freehold estate, could not be barred by any collateral satisfaction. Co. Lit. 36 b. — 4 Co. 1. A jointure therefore, which will be a bar of dower, must be within that statute. But no jointure is by that statute a bar of dower, unless it be a freehold estate in lands, tenements, or hereditaments, for the life of the wife at least, and which shall take effect in possession or profit immediately on the husband’s death.

By comparing a jointure of this description with the provision for the demandant in the marriage settlement before us, there seems to be no color for admitting that provision to be a jointure within the statute ; as it is a mere personal annuity. The statute also makes provision, when the widow is evicted of her jointure, which has been regularly settled upon her, that she may be let in to claim her dower in other lands of her husband’s ; as the consideration, on which she was barred, has totally failed. As in this case the insolvency of the husband has deprived the widow of the contemplated annuity ; if it were possible to consider this annuity as a freehold estate, yet within the equity of this statute, she ought to be admitted to her claim of ■lower, the consideration of her covenant having wholly failed.

Fay for the demandant.

This leads us to the second ground, viz. that the demandant’s covenant ought to have the effect of a release of dower. But this effect cannot be admitted on any correct legal principle. It is true that a covenant never to prosecute an existing demand shall operate as a release, to avoid circuity of action. But a release of a future demand, not then in existence, is void. Now, in this case, the settlement being executed before the marriage, the demand of dower had no existence, the same not being inchoate. On this principle, if there be any relief against the widow on her covenant, it must be by action.

But when we examine the settlement, it is manifest that she covenants on the consideration that the provision made for her is performed. But this consideration has failed through the insolvency of the husband: there is, therefore, no legal or equitable remedy against her or her covenants.

* On this view of the subject, the tenants must be called, [ * 156 ] and the demandant must have judgment to recover her dower, and her damages to be assessed, with her legal costs.

Tenants defaulted.  