
    (Greene County, Ohio, Common Pleas.)
    October Term, 1897.
    M. A. BROADSTONE, EXECUTOR, ETC., v. JOSEPHINE BALDWIN, et al.
    J. C. A. and M. G. B., prior to their marriage and in consideration and contemplation thereof, entered into a written contract, in which after, reciting that each owned property real and personal of great value, so that neither would probably need or desire any support from the other in money or property of any kind, and their desire that their estates and properties of every kind be kept entirely separate and distinct, the one from the other, the same as if their marriage liad not taken qilace, the said J. O. A. agreed in case he survived the said M. G. B., not to make or assert any claim as tenant by the curtesy or otherwise in the real estate of which she might die seized, or to any homestead privilege or to any of her personal’ property; and the said M. G. B. agreed, in case she survived the said J. O. A., not to assert any claim to dower or homestead in any real estate owned by him or that he might thereafter acquire, or to any distributive share of his personal property then or thereafter owned by him, or for the year’s allowance for her support as widow.
    After the death of the husband the widow claimed the year’s allowance, and the same was set off to her in money.
    There were no children of the marriage, and neither of the parties had minor children living at the time of the death of the husband.
    In an action against the administratrix of the estate of the husband to recover said allowance, Held:
    Said contract is founded on a good and sufficient consideration, opposed to no rule of public policy, and is a bar to the year’s allowance.
   SMITH, J.

Plaintiff brings his action upon the administration bond of defendant, Josephine Baldwin,as administratrix of the estate of John. Allen, deceased. Plaintiff is the duly appointed and qualified executor of the last wil and testament of Maria G. Allen, deceased.

At the time of her death, February 4, 1893, she was the widow of John O. Allen, who died July 4, 1890. There was set off by the appraisers of the said John C. Allen’s estate and allowed to her as his widow, two thousand dollars in money, duly certified by them for her support for twelve months from his death. Said allowance was duly approved and confirmed by the probate court. Plaintiff alleges that said administratrix has failed and refused on demand, and still refuses to apply assets of said estate in her hands toward the payment of said sum, or to obtain an order to sell real estate of which said John Cl. Allen died seized (being of the value of $25,000.00 or more) to enable her to pay if the personal assets are insufficient. It is further alleged that said administratrix has not filed an account of her administration, although more than eighteen months has elapsed since her appointment, and her administration bond was given and further time to make settlement has not been granted. By reason of the premises, plaintiff alleges a breach of the administration bond, unfaithful administration,and defendant’s liability for said sum of two thousand dollars and interest thereon from the date of said allowance,for which he prays judgment.

Defendants for a first defense, allege that plaintiff’s testatrix,the said Maria G. Allen, prior to her marriage with said John C. Allen, and in contemplation and consideration thereof, entered into a marriage contract in writing with him, in which, after reciting that each owned real and personal property ,of great value, so that neither would probably need or desire any support from the other in money or property of any kind, and their desire that their estates and property of every kind, be kept entirely separate and distinct, the one from the •other, the same as if their marriage had not taken place; it was mutually and reciprocally agreed and arranged as to their said property and estates, as follows, fo-wit:

The said John O. Allen, agreed that in case he should survive her, he would not have or assert as tenant by the curtesy or otherwise, any claim or interest in the real estate of which she might die seized, or any homestead privilege, or any claim whatever therein, or to any of her personal property, and that she should hold and retain all of her property, both.real and personal, owned by her as her separate estate, with all increase, .income, rents and profits thereof, free from the control of the said John C. Allen, and any moneys which she might acquire or save by her own industry, skill, or economy. -And the said Maria G. Allen, (whose name was then, Maria G. Bell), on her part agreed, in consideration of said Allen’s promises,and of all and singular the premises, to release, and did release to said Allen and to his heirs and assigns, all right or claim which she would or might acquire by said marriage to dower or homestead privilege, any or either in any real estate owned by him, or that he might acquire, or of which he might die seized, or to any share out of notes, bonds, mortgages, money or interests then owned, or that might thereafter be owned by him; and she also agreed, never to set up any claim for dower or homestead in any of said real estate, or for, or to any distributive share of his personal property, or for the year’s allowance for her support as widow ; which contract was, after the death of the said Jihn O. Allen, in a suit pending in the Circuit, Court of Clark county, wherein said widow was plaintiff, and defendant, Josephine Baldwin, as the sole heir of the said John C. Allen, was defendant, and v-herein plaintiff sought the assignment of dower to her in lands of which said Allen died seized, adjudged and decreed by said court to be a valid and binding contract between said parties and their privies, and a bar to dower, which judgment on a proceeding in error was affirmed by the Supreme Court.

A demurrer to said defense having been sustained, defendants filed an amendment to said answer, and in addition to the averments of said first defense, alleged that no children were ever born of said marriage, and neither of them had any minor children living at the time of the death of the said John C. Allen ; that there were no children or other persons living in the family at the túne of the death of the said John-O. Allen ; that the family consisted only of himself and his wife, and that she still owned, in her own right all the property she had at her marriage and at the time said marriage contract was entered into.

A general demurrer is filed to said first defense, and the amendment thereto.

It is claimed that an ante-nuptial contract will not bar a widow of a year’s allowance, no matter what its terms and provisions may be. This may be conceded where there are minor children under the age of fifteen years, at the time of the death of- the husband.

It is further claimed, that an ante-nuptial contract which gives nothing to a widow in lieu of a year’s allowance, will not bar it even though such a contract based upon a good pecuniary consideration might do so. The marriage was a sufficient consideration to support the contract.

Shouler on “Husband and Wife,” sec. 348-9; 1 Bishop on Married Women,” secs. 775, 805, 80C; Tiernan v. Binns, 92 Pa. St., 252; Barrante v. Gott, 6 Barber, 492; Hafer v. Hafer, 33 Kansas, 449; Charles v. Charles, 8 Grattan, (Va.), 486; Gelzer v. Gelzer, 1 Bartley’s Eq. (S. C.), 379; Nail v. Maurer, 25 Md., 532.

Even as against creditors in the absence of fraud.

Otis v. Spencer, 102 Ill., 622; Frank's Appeal, 59 Pa. St., 190; Prewit v. Wilson, 103 U. S., 22; Hollingsworth, et al. v. Thompson, 7 Peters, 348.

The mutual stipulations of the parties not to make any claim in the property or estate of the other, are alone sufficient.

Peck v. Peck, 12 R. I., 485; Nail v. Maurer, 25 Md., 532; Barrante v. Gott, 6 Barber, 492; Cauley v. Lawson, 5 Jones Eq. (N. C.), 132; Andrews v. Andrews, 8 Conn. 79; Sutherland v. Sutherland, 5 Bush. (Ky.) 591; Barth v. Lines, 118 Ill. 374; Phelps v. Phelps, 72 Ill. 545; McGee v. McGee, 91 Ill. 549; see also Murphy v. Murphy, 12 Ohio St. 407.

Whether an ante-nuptial contract which has been performed will bar the year’s allowance to the widow where she agrees not to claim such allowance, has not been passed upon by the Supreme Court of this state.

“Whether an ante-nuptial contract making provision for the wife in case of her survivorship, and expressed to be “in bar and full satisfaction of all such part or share of the personal estate of the husband which she may claim, or be entitled unto by law,” will operate as a bar in equity to her claim under the statute to an allowance for a year’s support after the death of her husband, quaere.

However this may be, such contract will not so operate unless it appear that the provisions of the contract in favor of the wife have been fairly performed.

Phillips, Ex. v. Phillips, 14 Ohio St., 308

In this case the allowance to the 'widow was not especially referred to in the contract. There were no children of the marriage. The answer setting up the ante-nuptial contract did not aver that the provisions of the contract in favor of the widow had been performed, to-wit-the setting apart of a fund of $10,000, for her benefit. The husband by the contract has agreed, that immediately upon his death his executors should, out of his personal estate, or, if that was insufficient, out of his real estate, set apart and invest 810,000 for her benefit. Prom all that appeared irons the answer, the executors were seeking to enforce the ieriormance of a contract which they had failed, or even refused to perform on their part. It was held, that the answer did not contain any distinct averment, either general or specific, of performance bv the executors. it not appearing that the provisions of the contract in favor of the widow had been fairly performed, it was held that the contract did not operate as a bar either to dower, distributive share, or a year’s allowance. The court say, 314: — “Tf it appeared from the record that the ante-nuptial contra'ct set up in the answer had been fully and fairly performed on the part of the testator and his executors, we have no doubt that the contract so performed would constitute a good, equitable jointure, and would in equity bar the widow from claiming dower in the testator’s real estate and a distributive share of the personal estate. But whether even then, she would be barred from claiming what she now claims, an allowance under the statute for a year’s support after hbr husband’s death, all the members of the court are not entirely clear.”

In Heck v. Heck, 34 Ohio St., 369, it is stated in the opinion, that the ante-nuptial contract as a bar to the year’s allowance could not be considered, as the same had not been made part of the record.

In Collyer v. Collyer’s Ex., 3 Ohio St., 369, it was held, that a widow electing to take under a will containing provisions for her in lieu'of dower and all other claims on the estate of the testator, is not barred of her right to the year’s support from the estate of the testator.

Under the statute, the effect of an election by the widow to take under the will, was to bar dower only, — no reference is made to the year’s allowance, — the law havinggiven the widow the right to the year’s support, and not having granted to the husband the right to take it from her, or make it a condition upon which she could claim property given her by his will, she was entitled to the year’s allowance and the provision under the will.

In Bane v. Wick, 4 Ohio St., 505, the husband died testate as to part of his property, and intestate as to the residue— the widow elected to take under the will, the appraisers neglected to set off a year’s support. After the expiration of the year the widow died, without having waived or relinquished her right to such allowance. Held, that the same survived to the personal representatives. The court say, p. 513: “In the present case no allowance was ever made; but the law enjoined the duty upon the appraisers to make it. No act of hers appears whereby she waived or relinquished it, and from the circumstances of the present case, none can be implied.”

Spangler v. Dukes, 39 Ohio St., 642, was a case of a post-nuptial contract, the provision for the wife being in lieu of all claim against the husband’s estate. The year’s allowance was not specifically waived or mentioned. The wife did not execute the contract, although she received a conveyance from the husband. A question arose as to the right of the widow to elect between her jointure and dower, under Rev. Stat., 4189. She was permitted to elect between jointure and dower, but held not entitled to claim both. Sec. 4189 provided, that the acceptance of such conveyance would bar dower, but if such conveyance was made during marriage, as it was, then the widow could waive title to such real property so conveyed, and demand dower. The court say, p. 650: “Something has been said as to her returning, also the amount which she has received as widow for her year’s support. Under Collver v. Colyer’s Ex’r., she is entitled to this allowance notwithstanding this provision was in full of all claims against said estate.”

Garretson v. Garretson, 4 C. C. Rep., 336, was also a case of a post nuptial contract, in which the wife agreed “in no event, at any time, to lay and claim to the property of her husband ;” the agreement did not waive her right to a year’s support.

In Stilley v. Folger, 14 Ohio, 610, the court say, p. 649: “Indeed, we think it may be considered as well settled, that almost any bona fide and reasonable agreement made before marriage to secure the wife either in the enjoyment of her own property, or a portion of that of the husband, whether during coverture or after his death, will be carried into execution in a Court of Chancery. ”

An'agreement between parties previously, and in contemplation of marriage, that neither, after the death of one of them, shall claim anything that had belonged to the other before marriage, was held sufficient in equity to exclude the woman from dower, a year’s al'.owance and a distributive share.

Canley v. Lawson, 5 Jones Eq., (N. Car.) 132.

The court say: “The writing in question seems tq be mutual convenants and agreements not to prefer a claim to any portion of the other’s property, or demand.any benefit therefrom, excepting such enjoyment as they might jointly reap from it while they lived together. The covenants are mutual, and the one is a sufficient consideration to support the other. ”

An ante-nuptial agreement in writing between parties owning real and personal property, the wife having- a life estate in land reciting the contemplated marriage, and stipulating that the survivor should take no interest in the estate of the deceased consort by descent or otherwise, but that the estate should “descend to the heirs the same as if-they had not married, ” bars the widow from claiming any interest in her deceased husband’s estate, though under the law of Indiana, the wife is the heir, in a limited sense, of her husband dying without issue.

McNutt v. McNutt, (Ind.) 19 N. E. Rep., 115, see Shaffer v. Matthews, Admr., 77, Ind., 83.

Where a woman about’ to marry, in an ' ante-nuptial contract,“relinquishes all right of dower and all interest of any kind whatsoever to which she might be entitled in the estate of her intended husband, by reason of her marriage,” she waives her right to, the 8300 of her husband’s estate under the act of April 14, 1851.

Tiernan v. Binns, 92 Pa. St., 248; see also, Ludwigg’s Appeal, 101 Pa. St., 535.

In Phelps v. Phelps, 72 Ill., 545, the courts say, (550): “Were there no child or children of the decedent residing with tne widow after his death, a very different question would be presented. The award would be for her sole use in such case, and might be treated as . a personal right which she could, if she chose, relinquish. But it is otherwise where there are children constituting the family.”

In Weaver v. Weaver, 100 Ill., 225, the court say (230) referring to the widow’s award or year’s allowance : “It will be found that in every case where it has been held, that the widow was not bound by the ante-nuptial agreement, the widow’s family consisted in part of a child or children of the deceaed husband, and the agreement was unexecuted byi the legal representatives.”

In this case the widow had received an amount in lieu of an award, and it was held that she was estopped. But the court say in the syllabus: “What is said in Phelps v. Phelps, 72 Ill., 545, in regard to the power of the widow to dispose of her award is, not to be understood as opposed to the doctrine here laid down.”

A widow’s dower may be barred by an ante-nuptial contract, and where there are-no children of the marriage, the widow’& award may in liue manner be barred.

Spencer v. Boardman, 118 Ill., 553.

In McMahill v. McMahill, 113 Ill., 461, it was held, that the widow’s award may be barred by an ante-nuptial contract where there were no children of the marriage, and the widow had accepted 81,000 named in the contract. The court say, in the syllabus: “In Phelps v. Phelps, 72 Ill., 545, it was held that a widow’s award in her husband’s estate could not be barred by an arte-nuptial contract. This was based upon the ground of his legal liability to support his wife and children. JBut the reason of the rule in that case fails when the husband dies, leaving no child having any legal claim on him for support, and these cases are in that regard to be distinguished.”

In McGee v. McGee, 91 Ill., 549, where, by the terms of an ante-nuptial contract, the wife received and was to receive nothing from the estate of her husband, she having an estate of her own and one in expectancy to which the hushand released all claims. The court held that the contract barred dower, but not the right to a homestead, because the right to the same extended to the children as well as the widow. There being minor children of the marriage the homestead could not be preserved to them unless set apart to the mother.

In McMahill v. McMahill, 105 Ill., 506, it was held, that an ante-nuptial contract did not bar the right to a homestead, though there were no children of the marriage. This was on the ground that the homestead right could only be extinguished in the nude provided for by statute, and an ante-nuptial agreement was not such mode.

See also, Achilles v. Achilles, 137 Ill., 589.

Where an ante-nuptial contract is just and reasonable in its provisions, and was fairly made by parties competent to contract, it should be upheld and enforced as to all the property of the parties contracting, including the homestead when the same becomes subject to partition.

Safer v. Hafer, 36 Kansas, 524.

In this case all the children of the marriage having reached the age of majority, partition was ordered according to the terms of the ante-nuptial contract, the widow taking an equal share with them.

In an action between the same parties in 33 Kansas, 449, it was held that “the statutes of Kansas recognize the right of parties to make settlements and contracts relating to and based upon the consideration of marriage, and an ante-nuptial contract providing a different rule than the one prescribed by law for settling their property rights, entered into by persons competent to contract, and which, considering the circumstances of the parties at the time, is reasonable and just, should be upheld and enforced. ”

In this case it was held that the homestead was n.ot subject to partition until the widow married, or the children of the marriage reached the age of majority, according to the provisions of the statute. The ante-nuptial contract did not refe'r specifically to the homestead privilege.

By an ante-nuptial agreement, the wife in consideration of a release on the part of the husband, and a settlement made upon her, released all claim to dower and an allowance. After the death of the husband, the wife petitioned for an allowance out of his estate which was made.

Held, the same was erroneous, and should be reversed.

Herald’s Appeal, 22 N. H., 265.

In Young v. Hicks, 92 N. Y., 235, where the wife, by an ante-nuptial contract, agreed that if husband died first, to accept $1,500 in lieu of dower and her rights as widow in his estate, and having survived her husband who made provision for the payment of the SI,500 in his will, it was held, there being no children, that she was not entitled to the specific articles given by the statute to a widow. Whether the right would be affected by the existence of minor children, quaere.

An ante-nuptial agreement that neither should claim during their marriage, or after the death of the other, any interest whatever in the property or estate of the other, held valid and a bar to the wife’s claim to dower. It 'was further held, that the contract could not be avoided for want of consideration, the reciprocal stipulations or the proposed marriage being sufficient. The court say : “This is not a case of settlement or jointure, but of a contract between competent parties, executed in good faith, on a good consideration by which the wife expressly agreed to relinquish all right to claim any interest or estate in the property of her deceased husband, the' power of the wife to bind herself by such a contract in equity must be admitted, and it cannot be doubted that it constitutes an equitable bar to the claim sought to be enforced by this bill.”

Naill v. Maurer, 25 Md., 532.

Any provision which a person competent to contract agrees before marriage to accept in lieu of dower, will amount to a good equitable jointure. Therefore, where a man and woman of advanced age, and each the owner of a large estate, real and personal, mutually agreed in contemplation of intermarriage, that the intended wife should hold and enjoy all her property to her sole and separate use, and should be entitled on certain terms to the avails of her separate labor which should be in full satisfaction of her dower in his real estate, the agreement having been executed. Held, the contract was founded on a good and valid consideration, opposed to no rule of public.policy and valid.

Andrews v. Andrews, 8 Conn., 79,

Where by express contract before, and in contemplation of marriage for which 'the marriage is a sufficient, consideration, the husband agrees to surrender his right to the enjoyment of the wife’s property during coverture, and his right to take as survivor, there remains nothing to which his material rights can attach during coverture, or after the death of the wife.

Charles v. Charles, 8 Gratt. (Va.) 486.

It is claimed that the year’s support cannot be released by an ante-nuptial contract, because it does not spring into existence until the husband’s death, and can then be first dealt with:

It is further’claimed that the principle applying where ante-nuptial contracts are held to bar dower, do not apply to a year’s support, that dower is an interest that vests in the wife on her husband’s becoming seized of real estate. Although inchoate, it has a substantial value, and is the subject of sale release, etc.

That the intended wife has not inchoate dower at the time of the execution of an ante-nuptial contract, though the intended husband be seized of real estate, is self evident.

But an ante-nuptial contract, if valid under the general principles governing such contracts, will bar dower in real estate acquired by the husband years after the marriage.

The only distinction of any consequence is, that as to dower it is the separate estate of the wife, concerning which she alone is entitled to contract, and third parties are not affected. But as to the year’s allowance there may be minor children, and such provision in nearly all the states is for the benefit of the widow and minor children. In this state, children under the, age of fifteen years. In such case the ante-nuptial contract cannot be enforced as to the widow without effecting such minor children.

But where there are no minor children, the right to a year’s allowance in the widow is as much her separate individual right as her right to dower.

It is not a question of the power to release a right to a year’s allowance which does not spring into existence until the death of the husband. Neither is it a question of the power to release a right to dower, which does not attach until marriage and seizing of real estate in the husband.

“The principle governing these cases it should be remembered is not that the ante nuptial contract constitutes a release of dower, — for a thing not existing cannot be released; but ;t is an understanding not to claim dower — an introduction of a rule by agreement differing from the one which the law provides in the absence of an agreement. For the principle is well settled that though parties marrying must take the status of marriage as the law has established it, and cannot vary it by ante-nuptial contract, yet within certain legal limits, and proceeding by legal rule, they may by such contract vary any or all of those property rights which the status superinduces. ” 1 Bishop on Married Women, 427.

“It is not the release of any right, but it is doing what is done every day in other things, namely: providing a rule by agreement to be applied instead of the rule •which the law would furnish in the absence of the agreement. Where this rule by agreement exists, dower on common principles ought to be held not to attach, and - though at law contrary to the course of adjudication in equity, no ante-nuptial contract can have practical force during coveiture; yet this particular agreement is not to have any force during coverture, for by its terms it is to have force only when it may be enforced according to the rules of the common law, namely: when the coverture has been dissolved by the death of the husband. 1 Bishop on Married Women, 418.

Numerous cases will be found where the year’s allowance was left not barred by an ante-nuptial contract, because such allowance was not specifically mentioned.

“As to the rights of surviving husband or wife in the deceased spouse’s property, the obvious inclination must be not to disturb the usual laws of inheritance and distribution, but rather to presume that the marriage settlement contemplates rights of property as limited to the duration of the marriage relation. Yet, clauses providing for the contingency of death and survivor-ship, receive in these times not infrequent consideration from American courts of equity, and it is properly held that clauses debarring or restraining the wife or the husband, or both, as to the usual rights of inheritance, such as dower, curtesy and the distributive share, ought to be clearly expressed and carefully established in proof in order t) prevail; notwithstanding which it is clear that deliberate concurrent intention settles such issues, and that m general husband and wife may mutually agree that the one, the other, or the two reciprocally shall claim no interest in the propeity of the other who shall die first, and may even exclude all right to administer. Ante-nuptial provisions in lieu of the usual rights by survivorship, deserve more favor, such as an equitable jointure in bar of dower, or whether otherwise rights of property are conferred equivalent to the rights which were taken away. In general, to preclude the usual marital rights of a spouse without some equivalent, plain intention should appear.” Shouler v. Husband & Wife, sec. 363.

It appears from the ante-nuptial contract set forth in the answer in the case at bar that he said Maria. G. Bell, amongst other things, agreed “never to set up any claim for the year’s allowance for her support as widow.” There can be_no question, as to the “plain intention” to make no claim to the year’s allowance. But this is not a case where there was not “some equivalent.” It appears from the recitals in said ante-nuptial contract that each party “owned real and personal property of great value, so that neither would probably need or desire any support from the other,” and the con tract provided that the said John C, Allen, in case he should survive the said Maria G. Bell, should not have or assert as tenant by the curtesy or other wise, any claim or interest in the real estate of which she might die seized, or any homestead privilege or any claim whatever therein, or to any of her personal property ; and that she should hold, retain and control all of her porperty, both real and personal, as her separate estate, with all the increase, income, rents' and profits thereof, free from the control of the said John O. Allen.

It is alleged in the answer that said contract was after the death of the said John C. Allen in“an action in the circuit court of Olaik county, in which said widow was plaintiff, and Josephine Baldwin, defendant herein and sole heir at law of the said John C. Allen, deceased, was defendant wherein said plaintiff sought the assignment of dower in the real estate of said John C. Alien, deceased, was held to be a valid ninding contract, and a bar to dower, and that said decree was affirmed by the supreme court. The questions as to a consideration, or some equivalent or a plain intention to bar dower, were certainly as esseutial to the validity of the agreement not to claim dower as the agreement not to claim the year’s allowance; and the same as well as other questions relating to the execution of the contract, its performance, reasonableness, etc., might have been litigated in that action. The allowance was made to the widow for her sole and separate use, there being no issue of the marriage and no minor children of either party. Her contract not to claim the year’s allowance may be. enforced without affecting the rights of any other party. She had the same power to deal with her right to a year’s allowance, as to dower, and as she only is affected, her contract respecting it is equally binding.

Keifer and Keifer, M. A. Broadstone, for Plaintiff.

Snodgrass & Schnebly, for Defendant.

Unlike the case of Phillips v. Phillips, 14 Ohio St., 308. defendant does not plead a conclusion of law merely, and aver that the contract “has been ever since its execution and still is a valid and subsisting contiact and binding on the plaintiff.” but pleads the fact that in an action in which said Maria G. Allen, was plaintiff, and defendant Josaphine Baldwin as sole heir at law of said John O. Allen, deceased, was defendant, the said contract was adjudged and decreed to be a valid and binding contract between said parties and their privies, and a bar to dower. Performance is also indirectly averred in the statement that the widow, at the time of the death of John C. Allen, still ow-ned in her own right all the property she had at her marriage and at the time said contract was entered into.

In the Massachusetts cases cited by counsel, (5 Allen, 187; 110 Mass., 461) the court does not hold that an ante-nuptial contract will not bar the year’s allowance. The case of Sullings v. Richmond, 5 Allen, 187, was in appeal from the decision of the probate court disallowing the petition of the widow claiming a distributive share in the personal estate, there being an ante-nuptial contract intended to bar dower and any distributive share. This finding was reversed on the ground that the probate court had no equity powers, “the remedy of the parties interested in the enforcement of the agreement .being in equity.” The same question arose in Blackington v. Blackington, 110 Mass, 461, with reference to the widow’s allowance. The court held there was no power in the probate court to try the validity of the ante-nuptial contract, or give effect to its provisions, and affirms 5 Allen, 187. There is no intimation in the opinion that the ante-nuptial contract would not bar the year’s allowance..

In Tarbell v. Tarbell, 10 Allen, 278, it was held that an ante-nuptial contract by which a woman agrees to relinquish her distributive share of her intended husband’s estate, will be enforced in equity if entered into understandingly for an adequate consideration and without fraud of misrepresentation on his part.

In Pulling’s case (Mich.) 48, N. W.Rep., 48, the widow had not expressly agreed not to claim the year’s allowance, but to make no claim whether in right of dower, distributive share or otherwise. The court say, .“The agreement here was intended to bar relator’s right of dower and all her right to share in the estate, and cannot be extended to include statutory allowances pertaining to administration.”

In Bryan v. McClure, 49 Mo., 546; State v. Taylor, 72 Mo., 650; Brown v. Brown, 68 Mo., 389; Cowdry v. Hitchcock, 103, 111, 262; Hancock v. Hubbard, 19 Pick, 167, there was no question respecting tho validity of an ante-nuptial contract.

In Mouser v. Mouser, 87 Mo., 440, there was a parol ante-nuptial contract. As to dower, its validity depended upon tho construction to be given the statute as to jointures :

Tho contract did not provide that no claim should be made for the year’s allowance, the provision being “on the death of either the other shall claim no’ interest in the estate of the deceased,”

In Sullivan v. Bliss, 8 N. Y., 31, the provisions of the ante nuptial contract had not been performed by the husband. The court say, p. 36, “It is idle to talk of the wife being bound by an agreement which the husband in his lifetime virtually repudiated.” In Brenner v. Gaugh, 85 Ill., 368, the court did not hold that a widow could not bar her year’s allowance by an ante-nuptial contract. Under the provisions of the contract in that case, the court held that it was necessary that the executor should pay the amount provided in the contract, which was to be received by her in lieu of dower and all of her claims.” The court say, p. 369, “If the executor seeks to avail himself as such of the provisions of the agreement as a bar to this proceeding, he may pay the amount, and then plead it as a defense.” Tne action was for the appointment of appraisers to set off the widow’s award. The demurrer is overruled.  