109 Kan. 22 | Kan. | 1921
Lead Opinion
The opinion of the court was delivered by ■
Sarah E. Burns, the widow of John T. Burns, brought this action against his four children by a former wife, and other defendants, the principal purpose being to procure a division of his estate under the law of descents and distributions instead of according to the terms of a written ante-nuptial agreement and a will to which she had given her consent in writing, both of which instruments she claims to be invalid. Judgment was rendered against her and she appeals.
At the time the contract was entered into, November 23, 1897, the plaintiff was about thirty-nine years old. Her first husband, a brother of John T. Burns, had died about a year before. Seven children of that marriage survived, two of them being married, the other five living with her, the youngest being three years of age. She had no considerable property. John T. Burns was fifty-five years of age; a widower with four children, all of whom survived him. His property consisted of an eighty-acre farm in Jackson county on which he lived, worth $2,000, subject to a mortgage of $600, and personalty worth $500. He was unable to work. His eyesight was very bad; he was practically blind, subject to rheumatism, and later a cancer developed. He received a pension of $75 a month. He died June 7, 1917, his estate then amounting to nearly $20,000, the Jackson county farm — the homestead— figuring in this estimate at $8,000, a Meade county farm at a like amount, an accumulation of pension money at $800, and growing crops at $1,000;.the remainder being made up of stock, implements, household goods' and other personal property. One child, who still lives, was born to the plaintiff and her second husband, in 1901.
The antenuptial contract provided that if the wife survived the husband she should receive only one-fifth of his estate — that is, an equal share with each of his four children, the portion of any child that might die before the father to go to the surviving children. Other provisions were that the wife should care for the husband’s children as if she were their mother; but that as soon as any of her children became able to earn its own living she should find some place for it to work and the husband should not be held liable for -its support; and that he might refuse to keep any of them around the farm who refused to obey him. The husband released all claims to his-wife’s estate, but this was so small as to be unimportant.
We do not regard the contract as so unfair as to be unenforceable or to cast upon those relying upon it the burden of producing affirmative evidence of its having been fully under
The provision of the contract with respect to the wife’s children was certainly ungracious, but we do not regard it as sufficient to vitiate the contract. The fact that the accumulation of the property in question is largely due to the efforts of the plaintiff is urged in support of her claim. Her husband’s almost helpless physical condition of course prevented him from sharing in the manual toil, but it is not clear that his advice and direction may not have been an important factor in the matter. He was obviously a close bargainer, while the plaintiff is represented as not being much of a business woman. It is not disputed that the property in controversy belonged to the husband, and the basis of its division at his death having been fixed by a valid contract, the court has no power to vary the apportionment because of the meritorious conduct of the plaintiff. Of a somewhat similar situation it was1 said in a former case:
“Some 'make-weight allegations are inserted in the petition, to' the effect that through the joint .efforts of husband and wife, incumbrances on the land in controversy were paid off, and valuable, permanent im*26 provements were placed on it. The plaintiff does not ask for compensation, or for a lien. What she wants is one-half the land, something she is not entitled to receive.” (Osborn v. Osborn, 102 Kan. 890, 895, 172 Pac. 23.)
The validity of an antenuptial agreement is not determined by precisely the same considerations in all jurisdictions. These rules have been declared in this state:
“It would seem from the authorities, that agreements of this kind are generally looked upon by the courts with favor, and are to be liberally interpreted with a view of carrying out the intentions of the persons engaging in them. We entertain no doubt, in the present state of our statutes, of the validity of an ante-nuptial contract, entered into in good fáith by parties competent to contract, and which, considering the circumstances of the parties at the time-eof making the same, is reasonable and just in its provisions, and that the rule thus agreed upon will take the place of that prescribed by the statute, in the distribution of their property upon the death of either.” (Hafer v. Hafer, 33 Kan. 449, 459, 6 Pac. 537.)
“If the intended wife is competent to make a contract and ha* a fair and adequate knowledge concerning the future husband’s property when she enters into an ante-nuptial agreement which is free from, deceit or fraud, it should not be set aside merely because the court or jury find that the provision made for her is in great disproportion to his property.” (Gordon v. Munn, 87 Kan. 624, 635, 125 Pac. 1.)
“It is the duty of every contracting party to learn and know its contents before he signs and delivers it. He owes this duty to the other party to the contract, because the latter may, and probably will, pay his money and shape his action in reliance upon the agreement. To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made, or to allow him to admit that he signed it but did not read it or know its stipulations, would absolutely destroy the value of all contracts. The purpose of the rule is to give stability to written agreements, and to remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible. . . . The rule that one who signs a contract is presumed to know its contents has been applied even to contracts of illiterate-persons on the ground that if such persons are unable to read, they are negligent if they fail to have the contract read to them. If a person cannot read the instrument, it is as much his duty to pro*27 cure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.” (6 R. C. L. 624, 625.)
“Where a person cannot read the language in which a contract is written, it is ordinarily as much his duty to procure some person to read and explain it to him before he signs it as it would be to read it before he signed it if he were able so to do, and his failure to obtain a reading and an explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.” (13 C. J. 372.)
The circumstances attending the execution of an antenuptial agreement are of course to be examined in a very different light from a contract between strangers or persons between whom no relations of confidence exist. But in either case there is no essential difference between a literate person signing a paper without reading it and an illiterate person signing it without ascertaining its contents in some other way. The mere fact of illiteracy does not raise a presumption of overreaching. Expressions are to be found to the effect that one who relies upon a contract signed by an illiterate person has the burden of proving that it was understandingly entered into, if a claim to the contrary is made. (18 C. J. 873, note 41.) We conceive the true rule to be, however, that it is only where some fact is established tending to show the practice of deception that the necessity arises of producing affirmative evidence in support of the good faith of the transaction.
The will having been consented to by the plaintiff in the manner provided by statute, upon its probate became effective according to its terms and the full title to all the testator’s realty passed at once to the devisees with all the rights incident thereto, there being no exceptions or reservations of any kind. The situation was substantially the same as though the plaintiff after her husband’s death had elected to take under the will. A widow who takes under the will can get nothing additional under the law, even where there is property undisposed of by the will. (Compton v. Akers, 96 Kan. 229, 150 Pac. 219.) If the provisions of the will are inconsistent with the homestead rights the widow must elect between them. (40 Cyc. 1970.) The doctrine of the Hafer case that a homestead right cannot be waived in an antenuptial contract goes to the extreme limit in that direction and should be extended no further. The Illinois case (McMahill et al. v. McMahill, 105 Ill. 596) there cited in support of the view taken was decided by a bare majority of the court and has since been overruled. (Colbert v. Rings, 231 Ill. 404. See Watson v. Watson, 107 Kan. 193, 191 Pac. 482.) The Hafer case, however, presents a quite different situation from the present. There, the marriage not having taken place, no homestead right had accrued. There is no statutory provision for its waiver at that stage. The statute, however, does specifically provide for one spouse giving effective consent to the will executed by the other. A wife by joining with her husband in a deed to land occupied as a family residence, although no reference is made therein to the homestead right, parts not only with the title but with
On the other hand an argument to this effect may be made in favor of the plaintiff’s contention, requiring a negative answer to the question whether the will cut off her homestead right:
The grounds upon which the decision in the Hafer case was based were that the antenuptial contract did not in terms refer to the homestead privilege and did not show a purpose to waive it, and that apart from this consideration public policy would forbid a waiver in such manner. Here the will does not in terms refer to the homestead privilege, and it does not disclose a purpose to waive it by any language substantially different in effect from that of the antenuptial contract in the Hafer case. The will says that the testator devises and bequeaths all his property, real and personal, to his wife and four sons in equal shares. The contract said that the husband should forever separately hold, own, use, possess, convey and dispose of all his property, real and personal, except the “child’s part” to be received by his wife, to the same extent as though he were not married. The phraseology appears in one case as much as the other to exclude the idea that the wife was to enjoy a homestead right in addition to the “child’s share.” The two instruments were made within a few weeks of each other and the will manifestly was intended to give effect to the provisions of the antenuptial contract and not to subject the plaintiff to a diminution of her rights as therein provided. The public policy of preserving the homestead right for the benefit of the widow and any minor children — to the end that they may not suffer from poverty or burden the public with their support — appears to have the same room for operation after the marriage as before. While there is no statute in terms permitting the making of antenuptial contracts the law permits them and places no express limitation upon them with respect to homestead rights. The statute fairly implies that one spouse with the written consent of the other may dispose of all his property by will (possibly subject to the homestead right) but the language from which this implication results is merely that “either may consent in writing, executed in the
Upon weighing all these considerations the court adopts the view that by a will to which his wife consents in writing in the presence of subscribing witnesses a husband may dispose
The conclusions already announced make it unnecessary to consider questions that have been presented with regard to the acquiescence of the plaintiff in the leasing of the homestead.
The minor son of the plaintiff and her second husband was represented by a guardian ad litem and asserted a claim with respect to the homestead, but as no appeal was'taken in his behalf no question is presented in that connection.
The judgment is affirmed.
Dissenting Opinion
(dissenting in part) : To my mind the reasoning of the Hafer decision, if carried to its logical conclusion, requires a holding that the plaintiff is not deprived of the homestead privilege. I therefore dissent from the fifth paragraph of the syllabus and the corresponding part of the opinion.