#### JANE MURPHEY v. ISAAC T. AVERY and CHARLES M'DOWELL, Administrators of JAMES MURPHEY, deceased.

A'release does not operate upon a mere possibility, therefore an ante-nuptial agreement, whereby the wife released all her claim as widow, to the estate of, her intended husband, is not, at law, a bar to her petition for a year’s support. ' .' ■ ■

The plaintiff, as the widow of James Murphey, filed her petition in the County Court of Burke,' for the year’s allowance which the act of 1796 *(Rev. ch.*469,) secures to widows, out of the personal property of their husbands, when they shall have died intestate. ■■ The case was carried by appeal to the Superior Court, where the defendants, relied upon the covenants in an ante-nuptial contract between the plaintiff and her late husband, as a bar to. her claim. The words of the covenant relied on were, “ that she” (the plaintiff) “will not at any .time, either now *26or hereafter, set up any claim or claims to the real or personal estate of the said James Murphey, which he may now own, or own at the time of the marriage, or may thereafter acquire during the coverture, either in right of dower, descent, inheritance, or distributive share as widow,” &c. and that she “ doth release, surrender, and quit claim forever, any present or future interest, claim or demand to any part of the estate, inheritance, dower lands, or any other property, either real, personal or mixed, or to any distributive share as next of kin, to which the said Jane Fleming, (the plaintiff,) might have been otherwise entitled.” His honour, Judge Donnell, on the Spring Circuit of 1832, *proforma,*dismissed the petition, whereupon the petitioner appealed. It was agreed between the parties, that no advantage should be taken on either side, to any irregularity in the appeal from the County to the Superior Court, or in any of the other proceedings.

*Devereux,*for the petitioner.

*Badger,*for the defendants.

Gaston, Judge.

— The sole question presented by the case, is, whether the plaintiff is not *tarred*of all claim to the allowance for which she has petitioned, by the operation of certain covenants, contained in an ante-nuptial contract, made between herself and her late husband. This involves two inquiries; first, whether any of these covenants embraces the claim; and, secondly, if they do, whether they constitute a valid *defence*against it. On the first inquiry, we are of opinion with the defendants. The covenants extend to every claim, of every sort, which she can set up to the real or personal estate of her husband, as *his widow.*On the second, after examination of the various acts of Assembly relating to this subject, (see acts of 1796, *Rev. ck.*469; 1813, *Rev. ch.*858; 1832, Pamph. c. 20,) we are of opinion, that the widow’s claim to a year’s allowance is one completely *legal,*and which cannot be destroyed by any thing short of a *legal bar.*It is clear that the covenants in this agreement do not amount to a *legal release. Such*a release could not be made of a possibility. If they constitute a release in equity, it will be *27for 4 Court of Equity so to pronounce. - If the defendants have a remedy at law for a breach of the covenants in preferring this claim, they can there recover such damages as will remunerate the estate of their intestate, for the injury thereby sustained.

Per Curiam. Judgment reversed.