Jacobs v. Jacobs, 42 Iowa 600

Jacobs v. Jacobs

42 Iowa 600 | Iowa | 1876

Day, J.

1. CONTRACT: construction, The court adopted the proper rules of construction, and correctly construed the contract in question. The whole contract must be considered in determining ^he meaning of any of its parts. The first point is to ascertain what the parties meant, and then to put such construction upon their contract as will bring it as near to their actual meaning as the words they saw fit to employ, when properly construed, and the rules of law will permit. In arriving at this meaning the subject matter of the contract, the situation of the parties and of the property, and the purpose of the parties in making the contract must be considered. Field v. Schricker, 14 Iowa, 119; Foly v. McKeegan, 4 Iowa, 1.

2.____; antenuptial: dower. Looking alone to the contract of the parties we discover they agreed “ that each of them is to have the untrammeled and sole control of his or her own property, real , . ,, , , . , , and personal, as though no such marriage had taken place.” This agreement is entirely inconsistent with the notion that the wife still retained her dower right in the lands of her husband.. Under the law in force when this agreement was executed, the wife was entitled to one-third in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which had not been sold on execution, and to which the wife had made no relinquishment of her right. *The husband could not make any disposition of his real estate, wdiich would not be charged or burdened with this interest of the wife. But under the agreement in question the expectant wdfe surrenders all claim to her husband’s property. She agrees that he may have the untrammeled and sole control of all his real property, as though no marriage had taken place. Under this agreement it cannot be questioned that the husband might, during coverture, without the concurrence or assent of his wdfe, have disposed of every acre of his land, and that the grantees would have taken it unincumbered with any claim of the wife for dower. The husband might also have disposed of this real estate by will, without the assent of the wife. She could not, by objecting to the will, and relinquishing the rights thereby *606conferred, be remitted to her dower interest as provided in section 2435 of the Revision. It is impossible to conceive of a dower right, which is under the absolute control of the husband.

3_____. heirs. Appellant, however, relies upon the provision of the contract, “ that in case of the death of either without issue, his or her property and effects shall descend and belong the heirs of the deceased only.” It is conceded that the husband might have disposed of the entire estate either by deed or by will. But it is claimed that, under the contract, upon his death seized of the realty, it descended to his heirs, and that his wife is such heir, and entitled to her share. If it be conceded that the wife is such heir, and so entitled to a share of the estate, then the effect of the agreement is to cause the property to descend just as it would have done if no agreement had been made.

However ignorant the parties may have been of some of the rules of descent, it cannot be presumed that they did not know what right a widow had in the realty of her deceased husband; and it is not credible that they deliberately went to work to provide by contract that the widow should have just such right as the law would give her without contract. We have already seen that the whole contract must be considered together, in placing a construction upon any of its parts.

The parties in contemplation of marriage were providing that each should have the untrammeled and sole control of his or her property.

The rules of descent are not so generally known or understood as the law which determines the wife’s dower interest, and hence the parties undertake to provide for the disposition of their property upon their deaths. At the time of this agreement one contracting party liad eleven children and the other had three. When they speak of the death of either without issue, they evidently refer to such death without joint issue of their marriage. This we think is plain from what follows, “but if there should be issue, and a child or children born to them, then such child or children are to be entitled to one-*607half the amount of the estate of each party or parent, that the former children of each are by law entitled'to.”

The agreement then would be that in case of the death of either party without issue of the marriage his or her property shall descend to the children of the deceased only, but if there should be children born to them, then such children should be entitled to one-half as much from each parent, as by law would go to the former children of such parent.

The word heirs would thus be limited to children, as it is competent to do when such intention is apparent. McMenomy v. McMenomy, 32 Iowa, 148. If it be objected that under this construction the parties, in the event of there being no issue of the marriage, provided the same course of descent as the law marked out without any agreement, the answer is that it is much more in harmony with the entire agreement to suppose that they did this, than that they ihtended, after each had surrendered all rights in the property of the. other, to provide that, upon the death of either, the survivor should have the same rights of property as though no contract had been made.

4____ consideration. II. It is claimed, however, that the contract is unreasonable and without sufficient consideration, and, therefore, ought not in a court of equity to be enforced. We can-no£ so regard it. The law always looks upon marriage as a civil contract, and this marriage seems to have been purely a business transaction. So far as appears, the contract was freely and voluntarily entered into, without any fraud or imposition. One of the parties was a crippled widower, sixty-two years old, with eleven children, and real estate worth $12,000; the other, a widow with three children, forty acres of land and $700 or $800 in money. They were willing to marry, but each wanted the sole control of his or her own property and to transmit it to his or her children. He secured a nurse and a housekeeper, and she secured an agreement for the maintenance of herself and her three children. We cannot say but that the advantages are about equal, and the contract is fair and reasonable. We know of no reason why it should not be enforced.

*608III. If there was a valid agreement upon the separation that defendant was to have $1,000, the failure to perform this agreement would not entitle defendant to one-third of the lands in question. If such agreement was made and has not been performed, her remedy is to look to the estate for payment of the stipulated sum.

Affirmed.