4 N.Y.S. 947 | N.Y. Sup. Ct. | 1889
John D. Carpenter, in October, 1877, was a widower, living in Ithaca, and then about.65 years of age. He had three children, viz.: Ellen C. Commings, the defendant in the first entitled action; Albert C. Carpenter, one of the defendants in the second action; and one Amanda C. Morgan. At the same time he was the owner in fee of the real estate described
The referee finds “that it was agreed and contracted by and between the said plaintiff and said John D. Carpenter, as a part of the marriage contract between them about to be solemnized, that each of the parties was to have the use and control of the property belonging to each. And that in case of the death of either, the survivor should not take any interest or right in theproperty of the other. ” To this finding of fact the plaintiff excepted. As it is
The foregoing is all the evidence given tending to show that an antenuptial agreement was made between these parties. I am not satisfied it is sufficient to establish the making of an agreement of the important character of the one in question. The declarations charged to have been made by the plaintiff do not directly refer to any agreement before the marriage, nor can it be fairly inferred that they do. At least they are as susceptible of the construction that they related to some talk had by the plaintiff with her husband after the marriage as before. From the language used it is equally consistent to say, assuming the statements to have been made, that she referred to some post-nuptial understanding or talk had, as to conclude that she spoke of anything that took place before the marriage. It is true, one of the witnesses, Mrs. Minier, an old lady of 77, speaks of a conversation the plaintiff had with her father before her marriage; but that falls far short of establishing an antenuptial agreement of the character claimed by the defendants. The plaintiff denies having made any of the statements above quoted. Antenuptial contracts whereby the intended future wife releases her dower right in real ■estate of her husband (if it can in any case be established by paroi) must be by evidence that leaves no room for doubt as to the making of the same, the •circumstances under which it was entered into, and its exact conditions and terms. The relation existing between the intended husband and wife is one ■of peculiar confidence, and if the husband or those representing him rely upon such an agreement, the burden of proof is upon him or them to show definitely what the same was, and that it was in all respects fairly made, and upon a full understanding by the expected wife of every fact necessary for •her to know to enable her to act understandingly, and with full knowledge in the matter. In this ease the husband’s real estate was of the value of at least $15,000, and his personal property, $10,000. The plaintiff had some $1,400 in her own right. And it seems to us quite improbable that with a full understanding of the situation she entered into an agreement which would deprive her from any participation in this considerable estate, at the .same time assuming the burden and responsibility of his care in his old age. ■Courts require strict proof of fairness when called upon to enforce an ante-
The referee finds that the agreement entered into was a part of the marriage contract about to be solemnized between these parties. It is not quite-apparent where in the case the evidence is found to sustain the conclusion. But, assuming that it can be supported, then it is an agreement made upon-consideration of marriage, and, resting in paroi, is void by the statute of frauds. The statute provides “that every agreement, promise, or undertaking made upon consideration of marriage shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith.” 3 Rev. St. p. 2327, § 2, subd. 3, Reade v. Livingston, 3 Johns. Ch. 481; Borst v. Corey, 16 Barb. 136, affirmed,. 15 N. Y. 505; Dygert v. Remerschnider, 32 N. Y. 629. It cannot be said that either of the parties acquired or lost any rights under or by reason of it, since the only consideration was the proposed marriage, and its subsequent, consummation was not sufficient to empower a court of equity to enforce it. The claim by the plaintiff is that the deeds were executed by the future husband, John D. Carpenter, in contemplation of the marriage, and to cut off any interest she, as his wife, might by reason of it acquire in his real estate. It may be contended by the defendants that, although the deeds were not delivered until after the death of Carpenter, that they took effect as of the time-they were delivered to Commings, and that the title passed to the grantees at that time; and that, although the alleged antenuptial contract may be void, still its effect may be invoked to rebut the inference of fraud on the part of the grantor. If the conveyances in question were, in fact, made while the-marriage was contemplated, and with intent to deprive the prospective wife-of her dower right in the lands, then the same are fraudulent and void as toiler. Swaine v. Perine, 5 Johns. Ch. 482; Youngs v. Carter, 1 Abb. N. C. 136, note; Smith v. Smith, 6 N. J. Eq. 515; Petty v. Petty, 4 B. Mon. 215; Thayer v. Thayer, 14 Vt. 107. The doctrine of these cases is questioned in Baker v. Chase, 6 Hill, 482; still it seems settled in cases of this character that equity will enforce her rights.
We have referred to the evidence the defendants rely upon to support their theory that such an agreement was made; and it only remains necessary to say that the same is wholly insufficient to establish the factf claimed, or even to raise the presumption of its existence. The manner in which the deeds were executed, the circumstances under which they were made, and the secrecy which surrounded the transaction, furnish strong evidence, not only that no-such-agreement as is contended was ever made, but that the conveyances were-purposely kept .secret from the wife, both before and after marriage. When-the daughters of the grantor were informed of their father’s contemplated marriage they strongly opposed it: This opposition did not seem sufficient to prevent it. The defendant Albert Carpenter, the son, then lived in Michigan. He came to Ithaca at the request of his sisters, and because of his hostility to-the father’s contemplated marriage. A few days after his arrival, and three days before its consummation, the deeds are executed and delivered to Commings, a son-in-law, to keep until after the grantor’s death. He takes them and puts them in a private drawer of a safe, and no mention is made of the fact of their execution by any of the parties having knowledge of it until 10-years after, and after the grantor’s death. He in the mean time, and during-his life, continued in the possession of the lands as their ostensible owner. Under these circumstances, and in the light of the evidence, it seems to be-that the only deduction to be drawn is not only that no previous agreement, between the grantor and the plaintiff had been made, but that the conveyances were in fact executed with a view to destroy any right the contem