142 Minn. 109 | Minn. | 1919
Defendants interposed a general demurrer to tbe amended complaint which was sustained. Plaintiff appealed. Tbe sufficiency of the pleading depends upon whether an action can be maintained to enforce the contract therein set forth.
It appears from the face of the pleading that, on August ?, 1912, one Haraldson and the plaintiff, in contemplation of marriage, proposed entering into an antenuptial contract, thereby settling upon plaintiff a certain lot or parcel of real estate then owned by her intended hus
The parties lived together until May 15, 1917, when the husband died, intestate, leaving him surviving Bennie Haraldson, his son by a former marriage, and the plaintiff, as his sole heirs at law. At his death Haraldson owned the lot referred to and personal property of the value of $11,781.30, consisting principally of money in a bank. There were no debts. At the time of the commencement of this action the defendant, Knutson, as the representative of Haraldson’s estate, had possession of the property.
It is clear from a reading of the instrument, that the agreement was in consideration of marriage. It could only be consummated by the marriage of the plaintiff and Haraldson, and her living with him during the remainder of his life. It is urged in support of the demurrer that the agreement is of no avail, under the statute of frauds, not having been signed prior to the marriage. Wé are unable to agree with this contention.
A marriage settlement is not required to be in writing or signed in the absence of a statute to that effect. Gackenbach v. Brouse, 4 Watts & S. 546 (Pa.) 39 Am. Dec. 104. The statute of frauds (G. S. 1913, § 6998), provides that no action shall be maintained upon any agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party charged therewith. The provision is, that no action shall be maintained upon any agreement, etc. It does not render such agreement void if it be not in writing or signed. It merely forbids or prohibits the maintenance of an action thereon. The statute
In New York, Wisconsin and other of the states, it has been held that an oral antenuptial agreement, though reduced to writing and properly executed after marriage, is still void under the statute of frauds. Hunt v. Hunt, 171 N. Y. 396, 64 N. E. 159, 59 L.R.A. 306; Rowell v. Barber, 142 Wis. 304, 125 N. W. 937, 27 L.R.A.(N.S.) 1140; Brandeis v. Neustadtl, 13 Wis. 142. There is a very full discussion of the question in the case last cited. In these states the statutes differ from ours in that they expressly render such an agreement void. Such is not the case before us. Our statute does not make such a contract void. It simply renders the contract nonactionable or nonenforceable in the courts. This difference is vital as pointed out by Chief Justice Dixon in Brandeis v. Neustadtl, supra.
The statute does not provide when the note or memorandum shall be signed. It need not be contemporaneous with the making 'of the agreement. It is only necessary that the evidence of the agreement be put in that form before any action can be maintained upon it. Browne, 224. It has been held in Iowa and Indiana, under statutes similar to ours, that if, after making an oral antenuptial agreement, the parties after marriage reduce it to writing and therein recognize and give effect to the oral agreement, the written instrument will be given effect as an ante-nuptial contract, though signed after marriage. Kohl v. Frederick, 115 Iowa, 517, 88 N. W. 1055; Frazer v. Andrews, 134 Iowa, 621, 112 N. W. 92, 11 L.R.A.(N.S.) 593, 13 Ann. Cas. 556; Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328. The instrument in question, executed as
The order sustaining the demurrer is reversed. Application for leave to answer should be made to the court below. Farley v. Kittson, 27 Minn. 102, 6 N. W. 450, 7 N. W. 267.
Keversed.