Jones v. First National Bank & Trust Co. of Racine, 36 N.W.2d 95

Jones v. First National Bank & Trust Co. of Racine

36 N.W.2d 95 | Wis. | 1949

Election of dower filed July 30, 1946, by Martha Paulson, widow of Paul Paulson, deceased, in the probate proceedings of his last will and codicil thereto. On July 1, 1948, an order was entered denying the widow's election. Milton Jones, executor of the will of Martha Paulson, now deceased, appeals. *259

On August 26, 1939, Martha Jones and Paul Paulson, contemplating marriage, entered into an antenuptial agreement in which each gave up any claims he might have against the estate of the other. They were married on August 30, 1939, in Racine, Wisconsin.

On February 10, 1943, Paul Paulson executed his last will. Paragraph 10 of that will provided: "Although I have entered into a prenuptial agreement with my beloved wife, Martha Paulson, nevertheless, it is my request that she share in my estate as hereinafter provided." By the following paragraphs and a codicil executed March 9, 1945, he left the residue of his estate in trust for his widow's lifetime; she was to receive $100 per month from either the principal or interest, any additional sums the court might direct the trustee to pay to maintain her, and the use of the homestead free of expense. In addition the trustee was directed to pay the expenses of her last illness and funeral. Upon her death the corpus of the trust was to go to certain persons not related to the testator.

Paul Paulson died on July 19, 1946. His will was admitted to probate and on July 30, 1946, his widow, Martha Paulson, filed an election in accordance with sec. 233.13, Stats., for the provision made for her by law instead of that made for her under the will.

Martha Paulson died on February 9, 1947. Milton Jones, her executor, on March 13, 1947, filed a petition for distribution in accordance with the election. The executor of the will of Paul Paulson objected on the ground that it was barred by the terms of the prenuptial agreement.

The court entered an order denying the right of election on July 1, 1948. Milton Jones, executor of the will of Martha Paulson, appeals. The prenuptial agreement which the parties made was a valid and binding contract. Will ofPaulson, 252 Wis. 161, 31 N.W.2d 182. In view of the later provisions for the widow in the will it is necessary to determine the intent of the parties when they made the prenuptial contract. The provisions of the agreement, itself, show the intent very clearly. It provided in part that the widow would accept it ". . . in lieu, bargain and satisfaction of and for all homestead, dower and thirds at the common law, or by force of any statute, custom or otherwise which she, said Martha Jones, could or might under any circumstances whatever otherwise have claimed or have been entitled to or out of all or any of the messuages, lands, tenements and hereditaments whatsoever of which he, said Paul Paulson, now is or may, during said coverture, be seized for any estate or inheritance, or for other dowable estate or interest whatsoever." It is evident that the widow expressly gave up any right to the statutory allowance.

Appellant admits the validity of the contract but contends that by the provision made in the will for Martha Paulson, she was thereby given the right to elect between that and the provision made for her by law. His reasoning is that because testator mentioned the prenuptial agreement in the will and said that "nevertheless, it is my request that she share in my estate," etc., he waived the agreement.

A valid antenuptial agreement is not affected by a party thereto giving by a last will something out of his estate to the other party to the agreement. The agreement continues effective, and a bequest such as made in this instance does nothing more than favor the devisee to the extent provided in the will. Bibelhausen v. Bibelhausen, 159 Wis. 365, *261 150 N.W. 516; Wellington v. Rugg, 243 Mass. 30,136 N.E. 831; 2 Black, Rescission and Cancellation (2d ed.), p. 984, sec. 368.

It seems obvious that the provision in the will cannot destroy the prenuptial agreement. Its effect is just that intended by the testator: To give his widow something in his will regardless of the fact that she had given up all right to it. Having no right to the statutory allowance she can make no claim to it. The doctrine of election originates in inconsistent or alternative gifts with the intention either expressed or implied that one shall be the substitute for the other. 1 Pomeroy, Eq. Jur. (4th ed.), p. 877, sec. 461; 4 Page, Wills (lifetime ed.), p. 2, sec. 1346.

By the Court. — Order affirmed.