116 S.W.2d 607 | Ark. | 1938
T. R. Davis and Miss Nora Hancock, both residents of Independence county, were married on July 12, 1929. Mr. Davis was a widower and had several children by his former wife. One child, T. R. Davis, Jr., was born of his second marriage in 1931, and he was six years old when his father, T. R. Davis, died on April 22, 1937, leaving an estate of about $7,000. One day prior *59 to this marriage, on July 11, 1929, T. R. Davis and Miss Nora Hancock entered into a prenuptial agreement and, for the purposes of this opinion, we assume that this agreement was definitely established by the testimony of the notary who took their acknowledgments to it, by the terms of which appellee agreed to accept $100 in full settlement of all her interest in the estate of Mr. Davis in the event he predeceased her. This contract was executed in duplicate by both of the parties and presumably each received a copy of it; but upon his death, the appellant, a son, administrator of his estate, was unable to find a copy of the contract among his papers, and we assume that it has been lost or destroyed, although there may be some question as to whether the proof sufficiently developed this fact to justify the admission of parol evidence to establish the contents of the written instrument. It is conceded in the briefs that Mr. Davis was much older than appellee, but the record fails to disclose their respective ages.
After the death of Mr. Davis, appellee instituted this action against appellant as administrator of said estate to have her dower and statutory allowances set aside to her. Appellant defended on the ground that the antenuptial agreement precluded her from claiming more than $100. Appellee was permitted to testify over appellant's objections, that the terms of the antenuptial agreement provided that she should take only $100 in the event of their separation or divorce. As to whether she was a competent witness, we find it unnecessary to decide, in view of the fact that we are assuming, for the purpose of this opinion only, that she made the agreement to take only $100 in the event her husband should predeceased her.
The probate court upheld the antenuptial agreement and directed the administrator to pay appellee $100, in full settlement of her dower, homestead and statutory rights in the estate of her husband. On appeal to the circuit court, the judgment of the probate court was reversed and it was held that she was entitled to dower, homestead and statutory allowances in the estate of her *60 late husband regardless of the antenuptial agreement of July 11, 1929. The case is here on appeal.
In Comstock v. Comstock,
In Brawley v. Rogers,
So it will he seen that the principle is announced in all of our cases, that in order for antenuptial contracts to be valid, they must be freely entered into, must not be unjust or inequitable and they must not be tainted with fraud. It appears to us that the contract in this case fails to meet these requirements in that it is an unjust and inequitable agreement. For only $100, if the contract should be enforced, she would be required to give up $450, which is absolutely secured to her under our statutes, the estate being solvent, (and it is), her right of homestead and dower in and to more than $7,000 worth of property. In the case of Achilles v. Achilles, supra, cited with approval in Shirey v. Shirey, supra, the court quoted from Taylor v. Taylor,
"But, in the absence of clear and satisfactory proof, it is not to be presumed that she would, with full knowledge of all the circumstances, have entered into such a contract. Parties to an antenuptial contract occupy a confidential relation toward each other. In re Kline's Estate, 64 Pa. St. [122] 124; Pierce v. Pierce,
Here, the provision secured for the appellee in the contract is disproportionate to the means of Mr. T. R. Davis, and "it raises the presumption of designed concealment, and throws the burden upon those claiming in his right to prove that there was full knowledge, on her part, of all that materially affected the contract." There is no proof in this record that appellee had any knowledge of the character and extent of her husband's property or that she was so well acquainted with him and his holdings as to justify the conclusion that she ought to have knowledge thereof at the time she executed said contract. Since appellant has failed to make such proof, he has not met the burden placed upon him by law and we must hold that the contract is invalid.
In this view of the case, it becomes unnecessary to determine whether her testimony regarding the contents of the antenuptial agreement was competent, as it can make no difference. Therefore, conceding that the contract was couched in the language contended for by appellant, it cannot be sustained. Moreover, it has been held by the Illinois court that the contract at the time of the death of Mr. Davis, was purely executory, and that upon his death, she repudiated it and claimed her widow's award, dower and homestead in the real estate of the deceased. In this connection, see Zachmann v. Zachmann,
The judgment of the Circuit court is correct, and is, therefore, affirmed.
SMITH and DONHAM, JJ., dissent.