159 Wis. 365 | Wis. | 1915
It is somewhat difficult to discover the exact logic of the court’s conclusions. It is claimed, aud not denied, that the findings were prepared by counsel for the prevailing party. There is evidence of that in the amount of unnecessary matter contained therein and a somewhat nonjudicial form of expression which, to my mind, takes very largely from the respect which findings of fact, judicially and judiciously prepared, are entitled to have. If counsel are permitted to draw the findings and choose the language with which to clothe a judicial determination, I suggest that the most careful atten-v tion should be devoted to the work to avoid giving the result a partisan and nonjudicial east.
The learned court characterized the agreement as making the marriage state a matter of bargain and sale, as if the ante-nuptial contract were void as matter of public t policy, or at least, to be avoided if practicable, rather than sustained. The fact that there were mutual promises of marriage preceding an arrangement as to property matters, was given special significance. That is commonly the case. It does not constitute, even a badge of fraud, much less, in itself, ground for declaring a contract void as contrary to public policy.
While it is true that the circumstances characterizing the making of an antenuptial contract, where there is anything suggesting unfairness in the property provision, are to be scrutinized with care and the agreement held void if it was not freely and understandingly entered into, to challenge validity is to allege fraud and that the instrument was the result thereof. In such a case the burden to establish fraud is on the party alleging it, and such burden can only be efficiently lifted by clear and satisfactory evidence. The mutual intentions of the parties, in such circumstances, are just as binding as is any other agreement. There is nothing inherently suspicious or bad about such an agreement. The contrary logic in the findings is wrong as decidedly shown by the decisions of this court. West v. Walker, 77 Wis. 557, 46 N. W. 819; Deller v. Deller,
True, an agreement whereby the future wife releases her •claim to her right of dower and other rights in the estate of her future husband, must be free from fraud or imposition, and is to be regarded with rigid scrutiny, and will not be approved where it appears that the future wife was overreached or induced by false representations to make the contract. But deception and false representations are not to be presumed and found 'without evidence. Such characteristics must be affirmatively established and clearly so. The presumptions are rather against such reprehensible conduct than the contrary, though they may be circumstantially so established. Events which would so establish such elements in case of a young and unexperienced person on the one side and a person of superior business acumen on the other, or where the inducement to marriage on the woman’s side was largely financial and companionship in the marriage relation with the home life were secondary, might overcome the prima facie effect of the executed contract, would not when the advantage of the latter being the main thing, as in case of a person circumstanced as the parties were in this case.
As said in Oesau v. Estate of Oesau, the overshadowing thing in dealing with such a contract as the one before us, is the intent of the parties at the time of making, — whether their minds met in respect to what was embodied in the paper,, and they executed it understandingly. If such were the case, the mere fact that the agreement was not as fair as it would seem to the court it ought to have been, gives no warrant for disturbing it.
Parties have the same right to make such a contract as the one in question as to make any other. It is just as much within the protection of the fundamental law as any other, where there is no statutox-y disability. There is no interfering unwritten law nor public policy of written law here, con
“There is nothing inherently suspicious about antenuptial contracts. They are, in the absence of unfair characterizing circumstances, to be regarded with favor rather than disfavor. In general, the burden is upon the one impeaching such a contract to support the claim of invalidity rather than upon the adversary to support the contrary. If there is anything about such an instrument, considering all the circumstances,, indicating that the intended wife had been unduly influenced to make it, that will overcome its prima facie validity, so as. to require the person asserting the contrary to, at least, restore such character.”
That expression was based on principle and authority, as. the following illustrations of many which might be given,, will abundantly show:
In Kennedy v. Kennedy, 150 Ind. 636, 50 N. E. 756, the contention was made, as here, that the contract was void because not answering to the technical requirements of a joint-ure under the statute requiring conveyance to an intended wife of real estate, to take as purchaser for postmortem enjoyment. The statute was similar to ours. The court responded, in terms or effect, to the claim that the instrument did not satisfy the statute:
“The case . . . is not one of a settlement or jointure under the statute, but is simply an antenuptial contract. . . . The right of an adult intended husband and wife in contemplation of marriage, to intercept a statutory line of descent, or the rights conferred by law, and substitute by contract, or agreement, a rule of inheritance of their own creation, by which their respective rights in the property of each other may be measured or determined, is a well settled principle. ... In*374 fact, no principle seems to be more firmly settled at the present time than that an adult woman, before her marriage, may bar her legal rights in her husband’s estate by her agreement to accept any other provisions in lien thereof.”
Note the language “any other provisions.”
“And such an agreement will be upheld and enforced by the courts in the absence of fraud or imposition upon her, and where it may be said, under the particular circumstances, that it is not unconscionable. . . . The rule by which we must be controlled in the interpretation of this contract is that which is applicable to any other contract. ... It must be considered, not in fragments, but as an entirety, and the intention of the parties ascertained through the words they have used. To ascertain their intention, regard should be had to the character of the instrument, the condition of the parties, and the object which they had in view.”
The same court in Buffington v. Buffington, 151 Ind. 200, 51 N. E. 828, said:
“Antenuptial contracts are not in such disfavor as to require rigid construction. On the contrary, they are favored by the law as promoting domestic happiness and adjusting .property questions which would otherwise often be the source of fruitful litigation.”
No formality is required, and the purpose of construction is to ascertain and give effect to the intention of the parties.
The same sentiment was expressed by Judge Elliott in McNutt v. McNutt, 116 Ind. 545, 19 N. E. 115, adding:
“The truth is, it is exceedingly difficult to imagine why, in any case where there is no fraud, courts, should displace the judgment of contracting parties and substitute their own. No persons in the world can so well and so justly judge as the contracting parties themselves, and it is only in the strongest and clearest cases that courts should disregard their judgment, and never where there is neither positive wrong nor a fraud.”
To the same effect are the following, among many at hand: Barth v. Lines, 118 Ill. 374; McGee v. McGee, 91 Ill. 548; Weaver v. Weaver, 109 Ill. 225; Naill v. Maurer, 25 Md.
The fact that some judicial sayings are contrary to the foregoing does not malee the law. It is the prevailing rule, in general, if reasonable, which should be taken as the unwritten law, and must be, when incorporated into our system of jurisprudence by considerate adjudication.^
Our statutes, secs. 2167 to 2171, are similar to those in most states. Secs. 2167 and 2169, providing for what is commonly denominated 'legal jointure,” should not be confused with the right to make a mere antenuptial agreement settling property matters by treaty, before marriage. That right existed before the statute and was not taken away thereby, but rather recognized and encouraged. Failure to appreciate this has made it necessary for many courts to deal with the subject as indicated in the cases cited. This is deduced from the weight of 'authority in the text of Oyc. cited: "The provisions, of a statute that a jointure is a bar of dower do not ordinarily deprive an intended wife of the power to bar her dower by any other form of antenuptial contract.” 14 Cyc. 940. That is, of course, provided regulations as to execution are complied with.
There is no reason now, if there were in former times, for judicially creating a disability to settle property matters by antenuptial contract, in view of the common-law disability of women as to business matters having been substantially removed, leaving her as free in that field as if not married. Under our present system of written law, a married woman is given an individuality of her own, — in some respects of greater significance, as to property, than that of her husband. No less freedom of action should be accorded to the woman candidate for marriage.
“The statutes of most of the states now make the wife as free and independent in the control of her property as the
And that is, especially, true where the parties to the contract were advanced in years, had been married before, and the .second marriage was largely a business arrangement to secure a home.
It is suggested that sec. 2169, Stats., which recognizes the right to make an antenuptial contract by using the term which is a mere recital of the common law, “any pecuniary provision which shall be made for the benefit of an intended wife,” etc., created a disability to make such a contract without an adequate provision for support of the wife after the decease of the husband. Such has not been the rulings of courts, in general, if at all, under similar statutes. They are to the effect that such statutes do not change the law and only -contemplate a consideration sufficient to avoid any presumption of fraud from the meagerness or want of it, and to make a substantial basis for the release of marital property rights. Anything which answers to the call for a “provision,” is sufficient. Barth v. Lines, supra; Andrews v. Andrews, 8 Conn. 79 ; Wentworth v. Wentworth, 69 Me. 247.
Where both parties have property and it is stipulated that each shall retain the individual possession with all rights the same as if unmarried, that is sufficient as held in Oesau v. Estate of Oesau, 157 Wis. 255, 147 N. W. 62, and cases heretofore cited. Even if the pecuniary consideration named shall not have been paid, if there is in fact an obligation to pay, that is sufficient. Where there is neither payment nor obligation to pay a different rule might well apply. Freeland v. Freeland, 128 Mass. 509.
This court dealt with the subject of “provision” when used in a statute as a condition, in In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786. Anything of value given as a provision
_ The learned court held that the contract in question was within sec. 2170, making validity of the agreement dependable upon assent to he hound by it having been given after the death of the husband. No reason is perceived for that holding. If plaintiff, without efficient fraud, assented to the agreement — as she prima facie did by the fact of her having signed it, she is bound thereby. If she did not so assent, it is void for the fraud. The statute does not deal with such a contract as the one here.
So it seems that the entire logic of the legal conclusions complained of, is very infirm. There is no finding that the making of the instrument was characterized by fraud. The court rather so suggested in the opinion. No misrepresentation as to property or otherwise, was claimed or proved. There was no proof that respondent did not voluntarily make the agreement. The evidence is that the paper was read to her, that she' was probably made to understand its contents, and doubtless understood fully its object and agreed to it. Oare, ex industria, was exercised to see that fihe whs not imposed upon. The attorney, who supervised the matter, testified:
“I prepared the instrument and got them married.' I believe Mr. Bibelhausen came here about half-past 8 in the morning alone. He came up there and asked me to prepare this jointure. He gave me the terms. Then she came up with him to sign it. My recollection is that I read it over to her. I am satisfied she knew what she was doing. It is my practice to satisfy myself before taking an acknowledgment that the parties understand and know the contents of*378 the instrument. I did that in this case. As I remember, the instrument was fully explained and read over to the parties. This is the form we used at the time and have used a number of times since, where the formal consideration is named and where it simply says it has been paid.”
He further testified that there was no money paid in his presence; that after the instrument was executed he assisted the parties to obtain a special permit to get married and then accompanied them to the St. Charles Hotel where Judge Neelen performed the marriage ceremony. There was no other evidence of the circumstances leading up to the making of the paper or characterizing its making, or that any fault was found with it by reason of nonpayment, at the time of its execution or theretofore, of the $500.
During the lifetime of Mr. Bibelhausen respondent made no complaint. The whole course of events suggests, clearly, that she willingly made the paper because she wanted to enter into the marriage relation with Mr. Bibelhausen without,any particular reference to prospective property advantages.
Evidently $500 was to be paid as respondent’s share of Mr. Bibelhausen’s estate. The agreement must be viewed from the aspect of things when it was made! Then the deceased had very little property. If it be valid it constitutes an obligation against the estate. The expression, in form, of present payment, without explanation, is an inadvertency, probably caused by use of a form without inquiring into the circumstances. Evidently, what Mr. Bibelhausen intended to do, was to take a release and preserve his existing right to control and dispose of his property by will or deed as he might see fit, in consideration of $500, either to be paid when his intended wife desired, or out of his estate, and, the agreement having been fully executed, except, possibly, payment of the money, it is not impeachable under our statutes of fraud.
The circuit court misapprehended the law by holding that
It is elementary that, in determining the intent embodied in an instrument, it is to receive a construction, if practicable, which will sustain it and render it reasonable, rather than one which -will defeat or render it unreasonable. It is also further elementary that, in the absence of fraud, neither inadequacy nor failure to pay the consideration named in a specialty, can be contradicted for the purpose of defeating it. The consideration may be explained. It may be shown to be other than stated. It may be shown to have been partly paid only, or not paid at all, without any effect upon the validity of the instrument. If partly or wholly unpaid, the instrument, under the circumstances, will be construed, as containing a promise, by implication, to pay, which may be enforced. Those principles are so firmly entrenched in the unwritten law, and so fully demonstrate that the decision complained of is wrong, so far as based on the mere nonpayment of the $500, that lengthy discussion of the matter is needless. The following, including authorities cited by appellant’s counsel, fully cover all phases of the subject: 3 Washb. Real Prop. (6th ed.) § 2281; 2 Devlin, Deeds (3d ed.) § 834; 13 Cyc. 535; Jones, Ev. (2d ed.) § 470 (477). Cases referred to in
The precise principles last discussed do not appear to have been heretofore a matter of adjudication in this court, though they are so well established that, it is probable they have been applied, to a more or less extent, in many instances. The general doctrine as to such unilaterally executed documents as the one before us, will be found stated, frequently, in substance, that the mention of a consideration, in an instrument executed by the party to whom it purports to have moved for the thing conveyed, and the formal receipt, are mere recitals, not contractual in character, and may be explained or varied; but not so as to vary or defeat the instrument for the purpose for which it was given. • As to such purpose, and that only, in the absence of efficient fraud, the person executing the paper is estopped from contradicting the recital. Hannan v. Oxley, 23 Wis. 519 ; Morgan v. South Milwaukee Lake View Co. 97 Wis. 275, 72 N. W. 872; Mueller v. Cook, 126 Wis 504, 105 N. W. 1054; Jost v. Wolf, 130 Wis. 37, 110 N. W. 232; Ill. S. Co. v. Paczocha, 139 Wis. 23, 119 N. W. 550. Thus concisely the rule is stated in Jost v. Wolf:
“The recital that there has been paid a consideration, and what that consideration was, is merely a statement of a fact theoretically necessary to exist in order that the conveyance might take effect, but which early became practically a mere immaterial fiction by reason of the rule that the grantor’s seal raised .a conclusive presumption of a consideration sufficient to support the instrument. Hence one cannot deny existence of some consideration in order to defeat the conveyance. To that end, however, the correctness of the recital was and is wholly immaterial, and the authorities, practically without exception, recognize that it binds no one as to its correctness, but may be proved, aliunde, to have been greater or less or*381 different in character, as property or services instead of money, and the like, so long as it is not inconsistent with the existence of some consideration to support the conveyance.”
The doctrine above discussed was applied in Maxwell v. McCall, 145 Iowa, 687, 124 N. W. 760, precisely as it has been suggested here, this being the expression of the court on the subject:
“The deed recites a consideration of $100. This sum was not in fact paid. ... It is well settled that the recitals of consideration in a deed may be explained by parol evidence. It may be shown that the consideration was either greater or less than, or different in form from, that stated in the deed. . . . Notwithstanding this liberal rule concerning the consideration, it is also well settled that .it is not competent to contradict the deed to the extent of showing, there was no consideration for the purpose of defeating the instrument, in the absence of fraud or mistake. It is to he noted further' that a recital of a consideration in a deed makes a prima facie agreement on the part of the grantee, in accepting the deed, to pay such consideration and he may be sued therefor.”
Now, assuming that the evidence is sufficient to support the finding of fact that the consideration of $500 was not actually handed respondent at the time the antenuptial agreement was made, or thereafter within the lifetime of Mr. Bibelhausen, it does not, of itself, render such agreement void or affect it in any way as a surrender of marital rights in his property. It is doubtful whether the mere evidence of respondent that she never had $500 at one time, or the want of written evidence that such amount -was parted with by Mr. Bibelhausen, or other mere circumstances relied on, are sufficient to overturn the prima facie effect of the paper, which should stand except in face of clear and satisfactory evidence. For aught that appears respondent might have expressly deferred payment, or left the money in the hands of Mr. Bibelhausen for her use, or it may have been the understanding that payment should wait upon his death or the contingency mentioned in the
.The court assumed to pass upon the question of when the-period would expire for respondent to take under the will of under the instrument in question. That assumption arose-from the erroneous idea that the agreement was within sec. 2170, relating to provisions made before marriage, not assented to by the intended wife, or made afterward with such-consent. This was neither. Therefore sec. 2172, fixing the time for election at one year after filing of the petition for settlement of an estate, does not apply, nor does ch. 394, Laws of 1913, providing (sub. 2, sec. 2172a, Stats. 1913) that the period occupied in judicially contesting the validity of the-provision characterized by the right of election, shall not count in the time fixed therefor, change the situation. We may well say, in passing, that, since there is no contest of the validity of a will involved in this case, the time for election as to the particular will, is governed by sec. 2172 and expired
Some question is raised as to the validity of the marriage between respondent and Mr. Bibelhausen, because in the di-, vorce proceedings between respondent and her first husband, jurisdiction to render the judgment was referable to an order -of publication directing the summons to he published in a particular newspaper “for not less than once a week for six weeks,”, using the words of the statute. It is suggested that since the statute requires such a summons to be published for such length of time as shall he deemed reasonable, “not less than once a week for six weeks,” it is vital to have the precise period of publication specified. That is extremely technical. Strict compliance with the statute, does not preclude reasonable compliance, within a sensible meaning of language, being ■sufficient. While it may he well to specify the precise time for a publication, as in the form to which reference is made by counsel, the words “not less than six weeks,” used in the order, plainly, fixed the period of publication at six weeks, though additional publications would not affect the validity of the service in such a case.
The rule must he recognized that an efficient presximption ■of fraud in obtaining, by an intended husband, a release from his intended wife of marital rights in the future husband’s property, may arise from a manifestly inadequate pecuniary provision in lieu thereof. That is a companion to the rule that marriage itself, under some circumstances at least, is a •sufficient consideration to support the contract. A sufficient
The question last suggested does not seem to have received attention of the trial court. That it was unappreciated seems clear from the circumstance that the court suggested, upon proof being offered respecting the property of Mr. Bibel-hausen at the date of the agreement, that it was quite immaterial. There was an offer to prove that he spent most of his money in getting a divorce and had left only a building in the city of Shawano, used for a saloon business, and some little machinery, — and the evidence was rejected. It must be assumed, that the offered evidence would have established what was claimed, supporting the presumption, nothing appearing to the ■ contrary, that the money consideration named in the agreement, was not grossly unfair in view of all the circumstances.
The circumstances referred to, include many things besides the property possessed by the intended husband; among them, the age of the parties, their position in life, the reasonable expectations of a pecuniary nature surrendered, based on present possessions, the ability of the intended husband to acquire property, his habits, his family, the needs of the intended wife, having regard for her age, her family supports and burdens, whether the prospective property advantages were of little consequence, and the companionship and home life in the family relations were the real inducement to marriage without thought of property advantages.
Applying the foregoing, the money consideration named in
The fact that respondent testified that when she signed the instrument she did not know what was in it, counts for little, in face of the presumption to the contrary, the entire absence of. proof that any artifice was used to prevent her from knowing its contents, and the clear testimony that the paper was explained to her before she signed it and she made no complaint about it until some eleven years had expired and Mr. Bibelhausen had passed away. She was conscious, all the time, of its existence. For some two years it had been a matter of public record, and its general effect she must have known. Indeed, there is no evidence that she did not.
We may say, in passing, that it is not clear whether respondent’s evidence which had to do with the transaction at the time she signed the instrument, was intended to be excluded. It was closely connected with proper rulings to that effect, made after a question had been answered, or partly so. But, giving what she said all the effect which it could fairly have, it does not prove want of knowledge of the purpose and substance of the paper; but does indicate that she was indifferent as to the pecuniary matter, incident to the proposed marriage, and was intent only upon the other advantages of the marriage state. Considering her family of children, nearly all of earning capacity, and her property, she appears to have been on about an even plane with Mr. Bibelhausen. Both being divorcees, each with a grown-up family, children of the prospective marriage not probably to be expected, the intended husband past the better part of an ordinary business life without having accumulated property of any consequence, — the pecuniary consideration does not look strikingly unfair, if unfair at all. Subsequent conduct in such a case may be considered. That is well illustrated by Smith's Appeal, 115 Pa. St. 319, 8 Atl. 582, where the intended wife was given about
In this case the great bulk of the property possessed by Mr. Bibelhausen at the time of his death was acquired after his marriage with respondent. Instead of standing on the antenuptial agreement, wholly, as he might have done, and" probably would have done had he harbored a thought of dealing unfairly with respondent, he provided for her very generously, considering the fact that he left her free to claim payment, as we shall see later, of the $500, if it had not been paid, and payment of all other money held by him in trust for her; and, further, since he had a son of mature years, in whom he evidently, had great confidence and for whom he had much respect, and two grandchildren, to whom he, obviously, was warmly attached.
Besides leaving respondent unembarrassed as aforesaid, on the faith of which she has filed a claim, as appears, in the administration proceedings, for $2,339.56, which seems to be waiting for final hearing upon the disposition of this case, — - he made these provisions for her: first, an exjness preference of claims of creditors over all devises and bequests; second, all his household furniture, goods, and effects of every kind and description to have and to hold as her own separate property; third, an annuity of $15 per month during her natural life; fourth, a life estate in the homestead property free from taxes, general or special, and expense of insurance, such taxes and insurance matters to be a charge on his whole estate; fifth, $500 in trust for use in securing for her necessary medical care and attention; sixth, $100 in trust for use in defraying her funeral expenses. To insure the faithful execution of such trusts he made his son trustee of his estate. All things considered, the will is quite a model. It was made after some nine years of married life and was left unchanged for the
On the whole, it seems that respondent acted understandingly when she made the agreement in question, and made no mistake in respect thereto or in the union of her destiny with that of the deceased. She evidently was pretty capable of taking care of her own affairs. Having reared five children, all or nearly alTto maturity, had many years of married life with her first husband, secured a dissolution of an unsatisfactory matrimonial contract with him and, incidentally, obtained a substantial property which she managed with her family affairs, — she must be-regarded as having been of more than average business ability for one in the station of the parties when she came to arrange for the second union. 'She, evidently, well knew the man she chose to unite her future with, knew generally of his circumstances, and particularly of his family, his age, and prospects in life. Moreover, she had a daughter, twenty-two years of age, who was her constant companion, her confidant and adviser. We do not overlook the finding that she was a woman of little business experience, but, as indicated, the evidence seems to be to the contrary.
The fact is appreciated that the home, which Mr. Bibel-
■ It is observed that counsel claim the trial court pronounced the release void as against public policy, because of the feature designed to preclude the intended wife from having any claim on Mr. Bibelhausen’s estate in addition to the stipulated $500, in the event of a separation of the parties after marriage. If such be the case, we are unable to discover it from the court’s opinion, nor does it seem to have support, as an original proposition. Counsel point confidently to the text in 9 Cyc. 521, 522, and cases 'cited. That relates to agreements for separation, — another matter entirely.
Counsel also point to Baum v. Baum, 109 Wis. 47, 85 N. W. 122; Oppenheimer v. Collins, 115 Wis. 283, 91 N. W. 690; and Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028. Neither has to do with a mere release, for a consideration, of property claims upon the husband’s estate in case of a separa
We have now considered every question suggested by the briefs of counsel, or which has been raised in our deliberations, and with more than ordinary fulness. The capacity to make such contracts as that in question is very valuable, as an individual right, and it is important to society that this should be understood and vindicated, while being carefully guarded so as to conserve its beneficent possibilities without danger of its being abused. That promotes contracting,' continuance of and enjoyment in, the matrimonial relation which sound public policy approves and promotes. To take away that right, or regulate it destructively, or treat its exercise with disfavor, and entry into the marriage state would be efficiently discouraged in many instances, especially in case of each of the parties concerned having been married before, raised a family, and being so advanced in years that companionship and care and comforts of home life are the paramount objects in
By the Court. — The judgment is reversed, and the cause remanded for judgment in favor of defendants as prayed for in the answer.
