84 W. Va. 168 | W. Va. | 1919
The subject matter of this suit is the sum of eight thous- and dollars, one-half the proceeds of the sale of the royalty oils produced by the lessees under a lease for oil and gas from a tract of land in Harrison County, made August 31, 1905, by John H. Bramer and Mary E., his wife, lessors, to William G ’Harrow, lessee, said tract being the property of the wife acquired by her during coverture by deed of August 6, 1894, executed by James Monroe and others, and containing one hundred and eighty acres, said money now being in the hands of Swartz and Strosnider, receivers in another suit.
Plaintiffs in this suit are children and heirs at law of Mary E. Bramer, now deceased, by John H. Bramer, also deceased, and the defendants are J. Benjamin Bramer and others, children and heirs at law of John H. Bramer by a former wife, and Emily S. Bramer, the third and surviving wife of said John H. Bramer, and one John W. Groves, claimant of one-third of said money by assignment in writing from the said Emily S. Bramer, representing her alleged one-third interest in said money as the widow of her deceased husband.
The royalty oils in question were produced from said land after the death of said Mary E. Bramer, which occurred June 26, 1908, and before the death of the said John H. Bramer, occurring in July, 1913. The record shows that
The basis of the plaintiffs’ claims to the exclusive right to said funds, besides their rights as the only heirs at law of Mary E. Bramer, who died intestate, is the antenuptial deed or contract entered into between their mother and father as follows: “This Deed made this third day of July 1866, between John H. Bramer of the first part and Mary Kile of' the second part.
‘ ‘ Witnesseth: that whereas a marriage is shortly to be solemnized between the said parties hereto, and whereas the said party of the second part is possessed of considerable estate both real and personal consisting of household furniture money choses in action and land, it is hereby agreed between the said parties that said party of the second part shall after said marriage hold and enjoy her said estate here-inbefore named to be her sole and separate use, and it is further agreed that the said party of the second part, her heirs and assigns shall have full power to sell, exchange, invest on dispose of by will or otherwise, her estate aforesaid or any other estate that she may acquire in her own right by descent or otherwise, to the intent that the aforesaid estate may not be at the disposal of or subject to the control of debts, forfeitures or engagements of the said party of the first part, her intended husband.
“Witness the following signatures and seals.
John H. Bremer (seal)
Mary Kile (seal”
The position of the plaintiffs is that by the plain provisions, of said instrument, or by necessary implication therefrom, the said John H. Bramer, in consideration of marriage, which constituted a good consideration, not only thereby settled upon their mother Mary E. Bramer all her property then owned or therafter to be acquired by her in any manner as and for her sole and separate estate and use, with right in her to sell, exchange or dispose thereof by will, deed or otherwise,
The position of the defendants, especially of the appellee John W. Groves, the only one of the appellees appearing in this court, is that the only effect of said deed of settlement,, executed as it was before our statute creating separate estates of married women in lands and personal property, was to convert Mrs. Bramer’s common-law estate into a separate-estate in equity, so’ that she might thereby as the deed in terms provides, “hold and] enjoy 'her said ¡estates * * * to her sole and separate use”, and that she might thereby be empowered to sell, exchange, invest or dispose of the same by will or otherwise, but to the intent ohly that said estate might not, as at common law, be at the disposal of or subject to his control or liable for the debts, forfeitures or engagements of the said John H. Bramer.
Apropos to the disposition of the main issues, we pause to-observe that it is well settled law in this State and elsewhere that mines opened under a lease executed prior to the death of the lessor giving power and authority to enter, mine and remove the mineral products subject to rents and royalties reserved, will be considered open mines at the time of the lessor’s death, though then not actually opened, so far as the right of the wife to dower or the husband to curtesy in such royalties is concerned. Alderson’s Adm’r. v.’ Alderson, 46 W. Va. 242, and authorities cited.
On the main propositions contended for by the parties, the law now is and for many years has been well settled in this State and in Virginia that a husband and wife in consideration of marriage may, by antenuptial contract in clear and! unequivocal terms or by terms from which it must necessarily be implied, release and relinquish all claim, title and interest in each other’s property that might otherwise accrue to them by their expected marriage, and in their right to take by inheritance, or' to claim or acquire on the death of the one
But the principle, of some of the decisions cited, most potently -urged by appellees’ counsel in support of the decree now before us for review, is that neither the husband nor wife should ever be deprived of his or her marital rights in the property of the other to a greater extent than may be necessary to give effect to the plain words of the contract or the manifest and clear intention of the parties. Coatney v. Hopkins, Beard v. Beard, and Hinkle v. Hinkle, supra.
In the light of these decisions what is the proper construction of the contract before us? It is said by high authority that the rules of construction governing other contracts apply in construing antenuptial contracts, namely', that the entire instrument, together with its general scope and purpose, should be considered and given effect according to the intention of the parties as shown by the language used. Collins v. Phillips, 259 Ill. 405. And this is the rule followed in' Coatney v. Hopkins, supra. In observance of this rule it is necessary to read the contract.in the light of the then existing law. At the time of the contract our present statute, chapter 66 of the Code, creating separate estates of married women, effective April 1,.1869, had not been enacted: Without some deed restraining the husband, his rights in his
But was the use of the word “heirs” in the contract under ■consideration to in any way limit the rights of the husband beyond those conferred on the wife? We do not think so. This.was a general term, and without the exercise by her during her life of the power of appointment by will or deed, it was not intended to reserve in the heirs any more than to her assigns the right on her death to cut off the right of •curtesy or inheritance given the husband by law. Moreover, we think that all that preceded was intended to be defined by the last clause in the'instrument, namely, “to the intent that the aforesaid estate may not be at the disposal of or •subject to the control of debts, forfeitures or engagements ■of the said party of the first part.” To preserve and secure to Mrs. Bramer a separate estate in her property was plainly the only intention of the parties. There is not in the instrument any "word manifesting an intention to cut Bramer out of his curtesy, or his inheritance in the event he should ■survive her. The parties were both comparatively young, he thirty-five, she twenty-five years of age. They evidently contemplated children, and the plaintiffs are her children by
We have considered the cross-assignments of error of ap-pellee Grove and find no merit therein. His rights as assignee of Emily S. Bramer, the widow, can only be secured through proper administration of the estate of John H. Bramer, if not also of the estate of Mary E. Bramer. In advance of proper administration he was not entitled to a decree for the money claimed by him by assignment of Emily S. Bramer.
Our conclusion is to affirm the decree.
Affirmed.