187 N.W. 418 | N.D. | 1922
Lead Opinion
Statement.
This is an equitable action to invalidate antenuptial and postnuptial agreements and to set aside a final decree in the estate of a deceased person. The plaintiff, the widow, has appealed from an order sustaining a demurrer to the complaint.
The facts, appearing in the complaint, and necessary to be stated, are as follows: The plaintiff, aged 59 years, married the deceased on February 19, 19x6. Prior thereto she had acted as his housekeeper. On August 15, 1914, a former wife of the deceased had died leaving him
Plaintiff alleges that she had no notice of the contents of this final decree until December, 1920, when, upon visiting her daughter at Lisbon and consulting counsel, she ascertained the extent and value of the deceased’s property, the probate proceedings had, and her right to exemptions. Further, she alleges that the administrator, the children, the attorney, and agents conspired to deprive her of a fair property settlement in the two agreements and by fraud and undue influence and misrepresentation conspired to prevent her from ascertaining the true facts, and, since the death of her husband, through undue influence prevented her from ascertaining and determining the true facts concerning the estate and her rights that she signed the exhibits through a mistake as to the legal effect of the same and without knowledge of the facts or of her rights; that, during the course of probate, she signed various documents through mistake as to their legal effect and meaning and without knowledge of the facts or of her rights; that she failed to claim her'statutory exemptions through mistake and without knowledge of her rights; that the home received by her is not of greater value than $2,500. She demands that the agreements be declared null and void; that the final decree be opened and set aside; that her exemptions be legally set aside
To this complaint a demurrer was interposed upon the grounds that the court has no jurisdiction of the subject of the action; that the complaint does not state facts sufficient to constitute a cause of action; and that several causes of action are improperly united.
Decision.
Does the complaint set forth a cause of action, in equity, to set aside the antenuptial and postnuptial agreements? In this regard, the gist of plaintiff’s cause of action, apparently, is that the antenuptial agreement was secretly prepared; that she was unaware of the financial worth of the deceased and that he did not inform her of his financial worth; that, furthermore, the antenuptial agreement awarded to her nothing beyond her exemptions excepting the remainder of the homestead estate when, then, the prospective husband was worth over $100,000. The plaintiff makes no direct allegations nor contention that deceased fraudulently represented or fraudulently concealed concerning his property either before or after the marriage. The complaint fully shows that the relations between the plaintiff and her husband were happy; that he treated her courteously and kindly and well provided for her. If she was misled, or did not understand concerning his property, apparently it was by reason of her actions, not the actions of the deceased. Nevertheless, the relation of husband and wife is one of special confidence and trust requiring the utmost good faith, and equity closely and rigidly scrutinizes transactions between them to the end that injustice and oppression may not result. In such cases the principle of law is often applied that fraudulent concealment will be presumed and ‘the burden of proof thrown on him, or those claiming under him, to show that full disclosure had been made where the provision made for the wife is grossly disproportionate to the value of the estate. 21 Cyc. 1269; Herr v. Herr (N. D.) 178 N. W. 443, 444; In re Warner’s Estate, 210 Pa. 431, 59 Atl. 1113; In re Enyart’s Estate, 100 Neb. 337, 160 N. W. 120; Keith v. Keith, 37 S. D. 132, 156 N. W. 910. It is true that in this state dower rights do not obtain. The husband, by his will, might have excluded the wife from any participation in his estate excepting the
We are of the opinion, further, that the complaint states a cause of action in equity for allowance of the widow’s exemptions. To secure such allowance, this action in equity, based upon grounds of fraud, deception, or misrepresentation, is available and not an action or proceeding in the county court to vacate the final decree after the lapse of one year. Reichert v. Reichert, 41 N. D. 253, 170 N. W. 621. The defendants admit that the county court should have allowed the widow her exemptions. Their contention is that the county court may now do so by correcting the final decree, nunc pro tunc.
In this appeal a question has arisen concerning the amount of exemptions to which the widow is entitled. The construction of § 8725, C. T. 1913, is involved. This statute provides:
“There shall also be set apart absolutely to the surviving wife or husband or minor children all the personal property of the testator or intestate which would be exempt from execution, if he were living, including all property absolutely exempt and other property selected by the person or persons entitled thereto, to amount in value of $1,500.00 according to the appraisement,” etc.
Is the widow entitled to receive, in addition to property absolutely exempt, only $1,500 in other property, or is she entitled to an additional $500?
Section 7730, C. T. 1913, provides for the absolute exemptions allowed the head of the family, while alive, from levy and sale upon execution, etc. Section 7731, C. T. 1913, provides that such head of the family may select, from all other of his personal property not absolutely exempt, property not to exceed $500 in value.- This statute was in force when the husband died. The present statute amending § 7731 now allows $1,000. Chap. 128, Taws 1919. It is apparent that there are two different statutes; one applying to the property of a person, the head of a family and while alive; the other applying to the property of a. person upon his death. Woods v. Teeson, 31 N. D. 610, 154 N. W. 797. Formerly, $1,500 was allowed, as an additional exemption, to the head of a
We are further of the opinion that the cause of action should be sustained against the demurrer that the court has no jurisdiction of the subject of the action and that several causes of action have been improperly united. Upon these phases of the demurrer, the defendants have made no contentions before this court.
The order is reversed, with costs.
Concurrence in Part
(concurring in part and dissenting in part). I agree that the complaint sets forth a cause of action in equity, to set aside the antenuptial and postnuptial marital agreements.
I dissent from the conclusion arrived at by the majority as to the construction of 8725, C. L. 1913, which provides as follows:
“Exempt Personal Property. Disposition of, — There shall also be set apart absolutely to the surviving wife or husband or minor children all the personal property of the testator or intestate which would be exempt from execution, if he were living, including all property absolutely exempt and other property selected by the person or persons entitled thereto to the amount in value of fifteen hundred dollars according to the appraisement and such property shall not be liable for any prior debt of the decedent except the necessary charges of his last sickness and funeral and expenses of the administration when there are no other assets available for the payment of such charges.”
I adhere to the interpretation of the foregoing section, as I gave to it in the case of Krumenacker v. Andis, 38 N. D. 512, 165 N. W. 524.