33 Kan. 449 | Kan. | 1885
The opinion of the court was delivered by
The main question in this case arises upon the validity of the ante-nuptial contract which was entered into by the decedent, Godfrey Hafer, and the defendant, "Virginia Hafer, on the day of and immediately preceding their marriage. She now contends, and the court below held, that an ante-nuptial contract was unauthorized by the law of this state. To this we cannot agree. It is true that our statute of “ descents and distributions” provides what disposition shall be made of the property of an intestate, and what share the widow shall take in his estate in the absence of any contract regulating the disposition of their property interest,- but there is no statutory provision which, either expressly or by implication, forbids the making of such a contract. Indeed, while there is no express authorization for making an ante-nuptial contract that will vary the rule provided by law for settling the property rights of the parties after the decease of either, yet. our statutes clearly recognize the right of parties to make and enter into such agreements. Section 6 of the statute of frauds provides that—
“No action shall be brought ... to charge any person upon any agreement made upon consideration of marriage, . . . unless the agreement upon which such action
This provision of our statute is substantially the same as § 4 of the English statute of frauds, which, under the interpretation of both the English and American courts, has been held as referring to and affecting marriage settlements and ante-nuptial contracts based upon the consideration of marriage. (Bishop on the Law of Married Women, §806, and authorities cited.)
Recognition of such contracts is also found in the act respecting the rights of married women, which took effect at the same date as the statute relating to descents and distributions. There it is provided that “nothing in this act contained shall invalidate any marriage settlement or contract now made or to be hereafter made.” (Comp. Laws of 1879, ch. 62, §6.)
In many of the states there are statutes concerning jointure, and prescribing the method by which parties contemplating marriage may bar the right of dower and curtesy, and some of the decisions relied on as authority by the defendants were made in those states, and where jointures were held to be insufficient as a statutory bar, because they failed to follow the statute. But even in these cases it is generally held that an ante-nuptial contract, entered into in good faith by competent parties, and which is fair and equitable in its terms, will be upheld and enforced as an equitable jointure by courts of equity. Independent of any such statute, it is generally ruled that the parties may provide a rule by an ante-nuptial agreement changing the one provided by law in settling the property rights of parties entering the married condition. It has been said that—
“Such a contract is not a release of any right, but it is doing what is done every day in other things, namely: providing a rule by agreement, to be applied instead of the rule which the law would furnish in the absence of an agreement. Where this rule by agreement exists, dower on common prin
The same author states—
“That before the statute of uses, and therefore independently of the sections concerning jointure, if a husband and his wife had entered into an ante-nuptial agreement whereby she accepted any provision therein made by him in lieu of dower, this undertaking bound her in equity, and she could not have dower on his death. The same law prevailed after the statute was enacted, whence may be traced the doctrine in part, of what is called equitable jointure, in distinction from jointure under the statute of uses, and the rules thereon by the common-law tribunals. And it is said that while legal jointure rests on the statute, equitable jointure rests on the rule of equity as existing before the statute was enacted.” (Id. § 420.)
And again, he says:
“From these views it follows that if a man and wopian about to marry choose, they may arrange their property rights between each other in almost any manner, differing however much from what the law in the absence of contract would direct.” (Id. §28.)
In speaking of the policy of such contracts, the supreme court of Ohio, in Stilley v. Folger, 14 Ohio, 649, says:
“Ante-nwptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage, and tend to promote domestic happiness by removing one of the frequent causes of family disputes, contentions about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled, at this day, that almost any bona fide and reasonable agreement, made before marriage to secure the wife in the enjoyment either of her own separate property, or a portion of that of her husband, -whether during the coverture cr after his death, will be carried into execution in a court of chancery.”
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
It was also held in the court below, that the contract was without consideration. Clearly, this is not so. In addition to the reciprocal agreements therein, it has for its support the consideration of marriage, which is not only a valuable consideration, but has been held to be “the highest consideration known in law,” and is undisputably sufficient to sustain an ante-nuptial contract. (1 Bishop on the Law of Married Women, §§ 775, 805, 806; Naill v. Maurer, 25 Md. 532; Johnston v. Dilliard, 1 Bay, 232; 4 Kent’s Com. 464.)
Another reason given why the contract should be held invalid was, that it was inequitable. Wherein its inequity consists, we cannot see. At the time the contract was made, Godfrey Hafer was a widower, fifty-six years of age, with seven children, all of whom had reached majority except the youngest one, who was fourteen years of age. They, together with his deceased wife, had by their labors accumulated a property of the value of $14,000 and upwards. Virginia Bowser was a maiden of twenty-six years, and the only property she could bring to the union, aside from her clothing, was two cows and $40 in money. It was his duty, under these circumstances, to make suitable provision for the children by his first wife. By the terms of the contract, Virginia was given the sole control
In view of these considerations, we are all united in the opinion that adequate provision was made for Virginia, and that the contract, as far as it concerned her, at least, was fair and highly equitable. (1 Bishop on the Law of Married Women, §§ 422, 423; Naill v. Maurer, supra.) Nor do we think that it can be held to be invalid upon the alleged ground of uncertainty. An examination of its provisions convinces us that they could not well be misunderstood. The chief complaint in this regard is, that the proportion of his estate which she could take under the agreement is uncertain. It is provided therein that during coverture each shall have the untrammeled control of his or her property, as well as the profit thereon, and if she should outlive him she will receive a child’s part; “that is, his estate shall be divided into an equal number of parts, equal to the number of children of the said Godfrey Hafer, plus one, and the said Virginia Bowser shall receive one of the said parts and no more.” The rule of division prescribed by the contract is as definite and certain as the rule provided by the legislature for the distribution of the estate of an intestate; and applying the maxim, “That is sufficiently certain which can be made certain,” we hold the contract to be unobjectionable by reason of uncertainty. The same strictness is not required in these contracts as in the case of a statutory or legal jointure. (See authorities heretofore cited.)
It is further claimed that the contract is invalid because “it was not shown that, at the time of the signing thereof, the financial condition of said Godfrey had been disclosed to or was known by said Virginia, and that it was not understood by said Virginia when she signed it.” Transactions of
It is further claimed that the contract ought not to be held valid, because the conduct of the parties after it was executed showed that they had abandoned and abrogated it. We see nothing in the testimony brought up in the record which warrants this assumption. On the other hand, it appears to-us that their conduct was entirely consistent with the theory that the instrument was always regarded by both as a subsisting and valid agreement.
Upon the trial, some testimony was offered by Virginia Hafer in her own behalf concerning communications which she had personally with Godfrey Hafer in respect to the making of the ante-nuptial agreement, and which was objected to by the plaintiffs. It clearly came within the prohibition of §322 of the code, which provides that “No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with the deceased person when the adverse party is . . . heir-at-law, . . . where they have acquired title to the cause of action immediately from such deceased person,” and therefore to that extent her testimony was inadmissible and should have been excluded.
Plaintiffs finally complain of the ruling of the court in finding that the home farm was occupied by the family as a homestead at the time of trial, and its conclusion that it was-not subject to partition. The finding of fact upon this question is as follows:
“The southeast quarter of sec. 23, T. 7, R. 15, except the-three acres sold therefrom, had for many years before said marriage been the homestead of said Godfrey, after said marriage remained, and at the time of his death was, the homestead of himself and family, and since his death has been and now is occupied as the family homestead by said Virginia and. two of said Godfrey’s sons and the said Emma B. Hafer.”
This finding, we think, is sufficiently supported by the testimony, and the court rightly held that partition of the home
In view of these considerations, and of the policy of the law which has been so frequently stated by this court, we think the right of occupancy of the homestead by the family of the intestate is not affected or disturbed by the ante-nuptial contract. We are not without authority upon this question. The supreme court of Illinois held in a case analogous to this one, that the policy of the law in relation to the homestead privilege is to preserve the same for the benefit of the family as well as the owner, and could not be abrogated by an ante-nuptial contract theretofore entered into between the husband and wife. (McMahill v. McMahill, 105 Ill. 596; Phelps v. Phelps, 72 id. 545; McGee v. McGee, 91 id. 548.)
It has been contended by plaintiffs that the minor child, having appeared in court and asked partition of the homestead,
Prom the views herein expressed, it follows that the order .and decree of the district court must be reversed.