*1 conflicting point evi- out under such a state weigh liberty to the evidence dence we are not at credibility determine of the witnesses. having appellant presented with us judgment error, affirmed. reversible Judgment affirmed.
Cooper, J., JJ., Myers, P. Ax concur. Reported 2d 91. N. E. Note. — Re In Estate McClain al. v. McClain. 19,502. Filed June [No. 1962.
Rehearing August 13, dismissed 1962.] *3 ' Sisson, Campbell, E. Charles & Richard John O. Browne, Campbell, Gemmill, Tobin, Nesbitt, H. D. Marion, Sisson, counsel, for Torrence & all appellants. Wildman, of
Cole, & Cole and Russell J. Wildman Peru, appellee. for Determine Heir-
Ax, Appellee a filed Petition to J . McClain, alleged ship she John F. wherein died, August 19, 1956, left sur- deceased, and intestate viving only his as his sole and heirs-at-law second him appellee heréin) (the petitioner widow childless McClain, by prior a G. his son born and Thomas marriage. heirship
Appellants denied this an answer Pre-Marriage Agreement forth set Settlement appellee. decedent and entered into between question presented to the court The sole below con- validity Pre-Marriage cerned Settlement. found the The trial to be invalid and court appellee son determined decedent’s should provided estate as share Statutes of Indiana. Descent of the State Appellant contends valid *4 contary and is the decision below is to law by sufficient evidеnce. sustained contract, position antenupital Appellee’s is that Pre-Marriage designated by parties as Settle- against policy ment, public it in is invalid because any McClain, decedent, of John F. relieved encourages thereby support duty and his wife domestic discord. provisions pertinent a consid-
The contractual are follows: of the as eration issues Agreement. “Pre-Marriage Sеttlement duplicate be- AGREEMENT entered “THIS ‘Mc- McCLAIN, called herein F. tween JOHN BONTA, called herein HELEN CLAIN’ and ‘BONTA,’ WITNESSETH contemplate parties “WHEREAS, marriage their hereto early have date and desire at an previous property made certain matters thereto; to have “WHEREAS, hereto desire separate property said after and hold their may marriage, any from incidents free marriage proposеd relation- arise of said out ship. THEREFORE, “NOW, consideration agree- premises ments covenants, and the mutual contained, the herein conditions agree follows, as hereto covenant to-wit: marriage parties, Bonta “After shall earnings, any income, monies, have and hold mixed), (real, personal property or insurance any or nature which Bonta or estate character may acquire mаy separate her sole and now have or discharged property, free and from arising rights any out of said mar- of McClain parties, relationship riage free and dis- rights any charged inheritance, descent, statutory support, statutory allowance, or other- right any discharged of wise, and free right upon other, the the estate administer against other, or a Will of the to take elect to to partiсipate manner interfere administration of estate settlement other. *5 provisions “After marriage, said the hereof prevent party making not either hereto from shall_ provision or title by Will, for by the other eontractural arrangement, otherwise, or pro- and such vision made in such instruments shall not be impaired by agreement; subsequent this party may arrange this to either titles agreement_ respective after-acquired their property in such they please, manner as and this shall arrangements. affect ...” Appellee contends that the words “free and dis- charged any rights from arising of Bonta out of said marriage relationship parties, free and dis- charged any rights inheritance, descent, statutory allowance, statutory support or otherwise” paragraph represents illegal as used in attempt pаrt on Mr. McClain relieve himself of duty imposed upon by him support established law to his wife. evidently trial adopted
The court appellee’s provisions construction by contractual follow ing general rule of law to the effect any part if of an entire consideration for a promise, any part or of of an promise, entire illegal, law, whether at statute, common whole contract is void. James al. v. Jellison 292; Jordan v. Kittle 275, 150 However, N. E. 817. there recog is a well exception invalidating nized to the rule agreements provides for, which facilitates or tends to separation induce a placing or divorce the husband position profit in a exception therefrom. This where the arises also provision contains rights delineating death, of the survivor on where fact cohabit until one of them dies. invalidity In such circumstances of the clause relating separation or divorce does not affect provisions concerning rights on death. 57 A. L. R.
§4, p. 949. exception upon above the well estab based principle lished law which asserts sub contract
stance that if the consideration for a contract partly legal partly illegal, will courts promise upon it, not enforce a based as the *6 illegal part of the consideration vitiates the entire unenforceable, and renders but if contract several legal promises, illegal, some of which are and some upon all one be based entire consideration which is legal, legal promise the law will enforce the while denying proceeding illegal in relief to enforce the promises. Simpson (1943), et al. v. 114 Fuller Ind. App. 870; Hynds 583, 587, Hays 51 N. (1865), E. 2d v. 25 40. Ind.
Marriage primary is the promises consideration for antenuptial contract, made an and when some of promises legal illegal, such are while others are regardless the former will be enforced of the illegality Stratton, the latter. v. Admr. 522; (1916), Ky. 62, 69, Wilson 170 185 W. S. (1930), App. Ehlers 259 Ill. Ehlers v. 142. agreed parties
In the herein the case ezffect marriage of their nothing survivor would take of their marital relationship. virtue Such an agreement only legal but is favored promoting law as happiness domestic adjusting property questions might which otherwise litigation. Buffington the source become v. Buff (1898), 151 ington, Executor 328; N. E. et Baugher Barrett al. App. 233, v. Hullinger 297; Roush v. E. 2d al. N. 342, 86 E. 2d N. 714. 119 Ind. Baugher supra, Barrett, forth
The case of sets agree general rules for construction of following in the ments statement: general “There are certain of construc rules tion with reference of . . . the dеtermination antenuptial agreement. The authorities agree construing such seem agreements they are to construed according generally the construction of contracts principles applicable to generally, since but agreements by public policy, such are favored they liberally construed shall be effect determining parties, intention, consideration should be had together language its rounding was instrument, entire with general scope purpose, sur conditions at time the legal rights made, they before, and would have existed after the existed marriage Jur. no been made. 26 Am. had if §280, pp. Each Husband 886-887. Wife upon determined must be the basis of the case particular language case and facts agreements.” in such used law, antenuptial agree- *7 Under this statement be construed: ment is tо According applicable principles to the
1. the generally; of construction contracts Liberally to effect 2. of the parties. antenuptial by appel- contract was entered
The into day February, the 10th lee on of and decedent subsequent to the and effective date of enactment prior marriage to the new Code of the Probate Code, parties. Chapter 112 Prоbate of §213 The of the being 1953, the same of Burns’ Indiana §6-213 Acts of Annotated, Replacement, applicable is Statutes determining validity be considered in must Agreement. Pre-Marriage This of Settlement statute reads as follows: share Expectancy. intestate “Waiver of —The spouse other or expectancy
or heir time which the other may at may be waived be entitled agreement contract, or waiver a written ex- waiving signed pectancy. or party such share marriage, in the absence promise The of in the fraud, a consideration of shall be sufficient marriage. In agreement made before case of an agreement contract, or waiver all other cases such if binding thereto upon the shall be the nature a full of after disclosure executed thing right, and if the extent of such and promisе under given party a fair consideration is to such Except as otherwise circumstances. all the by the therein, de- waiver executed provided cedent’s spouse be deemed waiver shall against the decedent’s will take right elect to agreement, contract, or waiver written provided manner as is the same may filed (Acts filing of election. for the an code in this 295.)” 112, §213, p. 1953, ch. section of this of enactment the Probate Code The of the case law of Indiana and an a codification public policy of this State to affirmation agreements. The waiver of favor expectancy or other share of a the intestate expressly provided; and, any time is spouse at marriage, agreement entered into before case marriage, fraud, in the absence promise consideration. a sufficient declared to be against provisions evidence, tested when The Pre-Marriage statute, Settle- substantiates writing. is in respects. The in all ment upon a sufficient consideration: founded marriage. There is no evidence promise *8 any probative force inference even which 654 may
value way be drawn fraud that entered agreement. into this
There is a total absence of upon evidence which the trial finding court could base a the Prе- Marriage Agreement Settlement is invalid and it must, therefore, finding be assumed that is upon founded content itself. construing In agreement, recog there are well accepted nized and which, rules of construction when applied issue, to the sustain rather Bojarski than In it. the case of invalidate v. (1942), 6, Ballard App. 200, Ind. E. 2d N. Appellate Court said: necessary “When contract, to construe a adopted construction to be is the one which appears justice to be in accord with common of the probable sense and the in, light honesty dealing accomplish fair the the end and serve purpose parties. intended The Illinois Pipe Line (1939), Co. v. Brosius 106 390, 20 E.N. 2d 195. Another rule of construction the intention of the to a contract viewing be determined must a whole and Sindlinger tions the instrument as provisions detached thereof. Deрartment Financial Institu 83, 199 210 Ind. N. E. 715.”
In the case of Walb Construction Chipman Co. v. 175 N. E. the Court said: interpretation “The cardinal rule of con tracts is to ascertain the intention parties, of expressed language used, and to give effect intention, if it can be legal done principles. consistent with ...” Another rule of pertaining construction to contracts upholding is that a construction pre- contract invalidate; one ferred to which would this rule is set *9 Mertz, (1927), forth of the case Wallace Admr. v. 185, 156 86 Ind. N. E. 562 follows: “ ... a con It the law in order is that enforceable, tract be valid must reason it be ably certain, definite so that parties intention of the can ascertained. be courts will But not declare contracts entered good into in faith when void and unenforceable recognized meaning their can be determined construсtion, reasonable of if rules capable contract be of will a construction that uphold it, is adopted one be rather it than ” which will it. . . . defeat applicable of Another rule construction here is v. Company found in case of International Shoe Lacy (1944), App. 641, 636, 114 Ind. 53 N. E. 2d : wherein the said Court “Courts will find uncertainties in contracts them possible logically
if it is construe other wise, for a contract to be valid ... it but reasonably certain, be definite and so must parties intention can be ascertained. ...” gathered The must be from frag parts the whole rather than isolated contract City The et al. ments. case of Ahlborn Hammond v. 12, 70, 111 E. N. 2d states the rule manner: this sentences, words, phrases, “It is settled that well paragraphs alone. ... of a read contract be cannot . . . The intention of be must gathered the entire contract. ...” meaning given To determine to be words question, the rule stated Haworth v. Hubbard et al. might guide. accepted well as the
N. E. 2d 967 serve rule is stated as follows: agreed everywhere in a that words used “It given and common their usual contract are to meaning unless, entire contract from the subject thereof, clear matter and the meaning in some other was tended. ...” agree applicable to Another rule of construction Dept. Sindlinger al. forth in ment herein set 83, 199 E. (1936), 210 Ind. N. Financial Institutions wherein Court said: “A or technical construction iso liberal indulged not be special clause lated or should *10 meaning The of a contract. the true defeat of a is to be ascer meaning true tained contract of all of its from a consideration carry to out the true provisions in order gathered whole from the instru ment. ...” purрose abrogate the
It is law to not by provisions of contracts construction terms language unambiguous is clear where the by to enforce rather as entered into but it precisely parties. is more in This rule stated Corp. LaPorte Gaw v. as follows:
N. E. 2d 790 liberty a at to revise “A court is contract not it. professing to construe Neither it does while right parties, a make contract for the have the is, actuаlly a different from that contract by ...” into them. entered agreement forth herein sets the intention of The preamble in the particularity both parties with body the document. The intention of in the his or her interest party release in
of each or hidden obscured other property of the language the instrument of The in manner. light specific of its clear and and considered by ordinary meaning ambiguity. Only dis- is without torting languagе rejecting the obvious used and can intent of embodied Pre-Marriage Settlement be concluded that Agreement proper all other than valid and respects. in- a to effectuate the
Given liberal construction parties, be held as tention of the must sharing prohibiting appellee of estate decedent. supra, Hullinger, Roush case of reviews agree- pertaining
Indiana authorities agreements. interpretation In its ments and of such analysis law, cited this Court this field governing precepts, as follows: right “The of an adult intended husband contemplation marriage intercept wife in statutory by rights descent, line of or the conferred by agreement, law, contract, and substitute or a rule of inheritance creation, own their respective rights property
which their may each determined, other be measured is a principle. Bishop well settled oh Married Women §427; v. McNutt al. McNutt 116 Ind. 545, 19N. E. 115. “Antenuptial contracts are favored the law. adjust They property questions *11 promote and happiness. domestic In such contracts no formal ity required and a liberal construction bewill given every giving pos case, them in effect, if parties. sible, to the Moore, intention Adm. Harrison, Adm. v. N. E. 1077and cases there cited. present “The law clear at the time that an marriage, may woman, adult legal rights before her bar her by agree- her in estate husband’s her any accept provisions toment other in lieu there- upheld of, and such will be and by the enforced courts the absence of fraud may her, it imposition upon and where circumstances, it said, particular under Kennedy Kennedy et v. is not unconscionable.” supra. al., supra, al., McNutt
In' of McNutt the case the court said: “ exceedingly is, difficult . . . truth no imagine why, where there is case to fraud, judgment displace courts should No
contracting parties their own. and substitute justly can so well and so person the world themselves, contracting parties and judge strongest only cases that and clearest it is courts disregard judgment, never their should wrong positive nor a fraud. is neither where there antenuptial uniformly upheld courts have “Our though into, fairly even where entered contracts very surviving wife leave the be to effect the little, marriage not upon motives of based mercenary, consideration it being but of the contracts, holding self, under such will be deemed fixed considerations though provisions for sufficient, even than the contemplated tory be much less statu wife give property widows, her no right or even Eastes . . Mallоw v. . interest. cases there cited. ...” 267, 100 N. E. public policy light well established In the agreements, favorable in this State objectionable portion of this the fact death, we hold that been vitiated has accruing relating rights provisions contractual give effect to the enforced should be death on thereto. clearly expressed udgment reversed. J Ryan, J., J., concurs Myers, concur.
Cooper, J. and P. only. in result
659 Rehearing. for On Petition Ax, Appellee petition desig- a filed within time J . Rehearing.” days nated aas “Petition for Within ten appellants motion, together thereafter their with filed separate a asking brief, petition that said for rehear- ing comply be for dismissed failure Rule 2-22 with Supreme Court. rule reads as follows: This “Rehearings. Application rehearing for a of by petition, separate cause shall be made from briefs, signed by counsel, аnd filed with the days clerk within 20 of deci- rendition sion, stating concisely why the reasons the deci- thought sion may, briefs application be erroneous. Such desired, supported by if be briefs, but will be after received the time allowed filing petition. opposing for Parties re- hearing may days file briefs within 10 after filing petition.” part petition, sought
As appellee of said a has her brief combine with the statement reasons for rehearing petition in that said makes reference to filed briefs hereto and contains argument propositions of stated and citations of support propositions, various authorities all filing separate under one cover of a without brief support petition. Although appellee’s peti- this propositions, claiming tion contains three but error opinion, its appellee this court nevertheless has pages arguing four and one-half utilized these propositions, concisely none various which states why thought reasons decision court this to be erroneous. petition
It been held our courts has for rehearing must conform to the aforesaid 2-22 Rule argumentative must not al, Blakely See Guthrie
brief. App. 119, 62; Maryland N. E. 2d etc,
Casualty v. Weiss Co. E. 2d 644.
156 N. *13 cognizant apparent confusion are of the We still legal profession among members оf the exists that interpreting Under in In Automobile Rule 2-22. this App. 454, 167 writers, (1960), 131 Ind. Inc. v. Smith rehearing, 882, petition court for this N. E. 2d on attempted clarification at that time to obtain opinion to that 2-22, and it was in answer that Rule Judge Achor, through Supreme speaking Court Underwriters, Inc. in Automobile v. Smith 825, attempting N. E. 2d in 241 Ind. clarify 2-22, Rule stated: alleged rule, errors above “Under grounds assigned, opinion, cause or which are by rehearing, supported a statemеnt be for must why concisely ‘the reasons the deci- which states thought Rule 2-22. The be erroneous.’ sion manner, that, contemplates in this the court rule petition. in its consideration be aided shall purpose rule, alleged with Consistent supported opinion, concise errors in thereof, support are reasons in statement However, necessary, is not waived. it considered as reasons case, suprа, Dorweiler that such in the stated argument. event, In supported be concisely reasons be however, if such cannot argu- considered extensive stated, ment is and it alleged opinion support of errors argument be desired, submitted must petition.” from the separate verbiage Judge Achor under believe We separate submitted be argument must from the “such purported follows that petition” rehearing cоntaining herein for exten petition alleged support argument errors does sive requirements of Rule 2-22. to the conform not. petition fails conform with said appellee’s Since 2-22, appellants’ Rule Motion Dismiss should sustained.
Appellants’ Appellee’s Motion to Petition Dismiss Rehearing sustained, appellee’s for Peti- now Rehearing tion for is dismissed. J.,
Cooper, Ryan, Myers, J., P. J. and concur. Reported Rehearing N. E. 2d 842. Note. — 184 N. E. 2d
dismissed 281. Employment Nelund v. Review Board of Indiana Security et al. Division 19,802. August 15, Filed [No. 1962.]