| Mass. | Jan 15, 1872
This bill in equity is brought to enforce the specific performance of a marriage contract, by which the defendant covenanted not to claim dower or any distributive share of her intended husband’s estate, in consideration of his covenants securing to her a certain sum after his decease and giving up his claim to any part of her estate as tenant by the curtesy or otherwise.
The validity of such a contract, and the power of a court of •quity to enforce its specific performance, has been fully recognized by this court. Tarbell v. Tarbell, 10 Allen, 278. Sullings v. Richmond, 5 Allen, 187. Miller v. Goodwin, 8 Gray, 542.
These provisions were first substantially enacted in 1845. They are in derogation of the common law regulating rights of property under the marriage relation, and empower the parties before marriage to enter into a contract that after marriage the real and personal property of either shall be held by them according to its stipulations. A schedule of the property, containing a description sufficient to enable a creditor to distinguish it, is required to be annexed; and unless recorded within ninety days after the marriage it is declared to be -void. The statute applies only to contracts enabling the parties to hold the property specified to their own use after marriage; and requires such to be recorded, for the obvious reason that creditors might otherwise be defrauded.
The contract here sought to be enforced relates only to the rights which the survivor may claim in the estate of the other when the marriage relation is terminated by death. Its validity does not depend on the statute. It is as independent of its provisions, as a strict settlement by jointure or a pecuniary provision assented to by her in lieu of dower, and these have long been recognized as valid ante-nuptial agreements, which do not require to be recorded to be binding on the parties. Gen. Sts. c. 90, §§ 9, 10. Hastings v. Dickinson, 7 Mass. 153" court="Mass." date_filed="1810-10-15" href="https://app.midpage.ai/document/hastings-v-dickinson-6403621?utm_source=webapp" opinion_id="6403621">7 Mass. 153. Bigelow v. Hubbard, 97 Mass. 195" court="Mass." date_filed="1867-09-15" href="https://app.midpage.ai/document/bigelow-v-hubbard-6415025?utm_source=webapp" opinion_id="6415025">97 Mass. 195.
The defendant’s objection is founded on a misapplication of the provisions of the statute cited to the contract in question.
Decree for the plaintiff.