150 Ind. 636 | Ind. | 1898
This was an action in partition, instituted by the appellant, Sarah M. Kennedy, the widow of Archibald M. Kennedy, against the appellees, who are his children, and also legatees under his will. The complaint is in two paragraphs, but as appellant, through her counsel, has virtually waived all questions in respect to her alleged rights under the first paragraph, we give it no consideration. By the second paragraph of her complaint, appellee seeks to have assigned to her, for life, one-third of the real estate of which her husband died seized, and also to be awarded her quarantine rights, under the statute, in respect to the occupancy of the dwelling house of the deceased, and real estate adjoining thereto. This paragraph recites the provisions of an antenuptial contract executed by appellant and her deceased husband, and a copy thereof is filed as an exhibit. Appellees answered the complaint in two paragraphs, the first being a general denial. The second set out, and relied on as defense in bar to the action, the antenuptial contract mentioned in the complaint. Appellant unsucessfully demurred to this second paragraph of the answer, whereupon appellees withdrew their general denial; and she electing to stand by her demurrer to the answer, and refusing to further plead, judgment was renederd in favor of the appellees. The only question involved in the assignment of error is the construction of the marrige contract set up in the answer.
The facts averred in the answer may be thus summarized : On and prior to May 24, 1889, Archibald M. Kennedy, appellant’s d^> ■ -'A husband, was a wid
The following is a copy of the contract in controversy, together with a copy of the estimate of the valúe of the personal property held by the husband on January 1,1890: “This agreement, between Archibald M. Kennedy, of Rush county, Indiana, and Sarah Hall (formerly English), of Greensburg, Decatur county, Indiana, witnesseth, that the said parties have mutually promised to intermarry. Now, for the purpose of arranging all questions of property, and in consideration of said promise to marry, said parties agree as follows: All the property of both parties, now owned or hereafter acquired by them, or either of them, to be the common property of both parties, the rents and profits of,which are to be used for their
The contention of counsel for appellant is that in accord with the proper construction of this contract, it must be held that it was not intended thereby to intercept the rights of the wife, which the law, at. the death of her husband, would award her in his estate as his surviving widow. They insist that it was the intention of the parties that the appellant should have the annuity provided in the contract, after the death of the husband, in addition to the provisions made for her. by law. Counsel for appellee, however, contend that appellant’s rights and interest, in respect to the estate of her late husband, must be measured solely by the contract, and that she is thereby barred from claiming or asserting her life interest and her rights of quaiantine in the lands in controversy. Appellant’s counsel insist that the one-third life interest in the lands of her deceased husband, and also her right to the widow’s quarantine, are rights which appellant is awarded under sections 2644, 2653, Burns’ R. S. 1894, and consequently she can only be barred or deprived of such rights thereunder in the manner provided by the statute of descents for creating a jointure for an intended wife. Sections 2661, 2663, Burns’ R. S. 1894 (2500, 2502, R.. S. 1881). Therefore they say that, inasmuch as the contract in question fail sr to respond to the requirements of section 2661, supra, in not expressly stipulatingthat appellant assented to receive or accept the provisions made for her “in lieu, of all right or claim'” in the lands of her husband, she is entitled to her legal rights in respect to such lands.
The right of an adult intended husband and wife in contemplation of marriage, to intercept a statutory line of descent, or the rights conferred by law, and substitute by contract, or agreement, a rule of inheritance of their own creation, by which their respective rights in the property of each other may be measured or determined, is a well settled principle. Bishop on Married Women, section 427; McNutt v. McNutt, 116 Ind. 545, 2 L. R. A. 372. In fact,' no principle seems to be more firmly settled at the present time than that an adult woman, before her marriage, may bar her legal rights in her husband’s estate by her agreement
• Tested bv these well settled principles, we are of the opinion that appellant and her prospective husband, at the time they executed the contract in controversy, intended that her rights in his estate, at his death, should be measured solely by the provisions therein made for her. It is true that the instrument is awkwardly drafted, and inaptly worded, but a court, in construing a marriage contract, will endeavor to so interpret it as to carry out the true intent of the contracting parties, without regard to the strict technical meaning of words therein employed. 14 Am. and Eng. Ency. of Law, 550.
The rule by which we must be controlled in the interpretation of this contract is that which is applicable to any other contract: First, it must be considered, not in fragments, but as an entirety, and the intention of the parties ascertained through the words
The circumstances or conditions of the parties to this contract, at the time of its execution, appear from the averments of the answer to have been substantially as follows: Mr. Kennedy, the intended husband, was a widower seventy-one years of age; the father by a previous marriage of five adult children; and was the owner at the time of 240 acres of land, being that now in dispute, of the value of $15,000, and an annual rental value of $600, and was also the owner of some personal property. There is no contention that appellant, at the time she entered into the contract, was not fully apprized of the amount and value of the property owned by her husband. She, it appears, was a widow forty-three years old, with no children, being the junior of her future husband by twenty-eight years, and, at the time, was the owner of real and personal property of the value of $1,000.00. At the date of the contract, the act of March 11, 1889, which vests a childless second wife, on the death of her husband, where the latter leaves surviving children by a previous marriage, with a life estate in one-third of his lands, was in force. From the fact that at the date of this agreement, the husband had passed the age of “three score years and ten,” the usual period allotted to man, each of the parties, under the circumstances, may have reasonably supposed that the wife would survive her intended husband, and, considering their respective
Considering the age of the husband, and the fact that he had five living children, who, so far as we are apprised, were deserving of their father’s bounty, it would not be reasonable to assume that appellant’s future husband, at the very threshold of their marriage, intended by the terms of the instrument in question to make provisions for her in addition to the portion of his estate which the law would award her, in the event she survived him as his widow. If the interpretation of the contract, for which appellant’s counsel contend, be accepted as the correct one, then the part of the husband’s estate, to which apppellees, as his children and heirs, would be entitled, in the absence of the contract, would be diminished by subjecting such part of the estate so received by them, to the payment of the annuity; and thereby, appellant’s interest in the estate would be enlarged, at least, to the amount of the annuity, over and above that awarded to her by the law.
It is evident, we think, that such a result was not
. The instrument in question being an antenuptial contract, she can therefore exercise nó choice by election but in the exercise of her rights, she is confined alone to its provisions. The conténtion of counsel, that to uphold this agreement would be unconscionable, cannot, in reason, under the circumstances, be sustained. It cannot be asserted that she agreed to receive a mere pittance of her husband’s estate. In addition to her holding the property, which she had at the time of her marriage, as her own, together with one-third of that acquired by her and her husband1, she was to be paid an annuity of $200 for life, or during her widowhood; and, as the annual rental value of the lands in controversy is $600, it may be said that the payment to her of this annuity is virtually equivalent to the use and enjoyment of one-third of her husband’s lands, as a tenant for life.
This case is quite unlike that of Achilles v. Achilles, 151 Ill. 136, 37 N. E. 693, upon which counsel for appellant rely. In that case it did not appear that the wife had entered into the marriage contract with a full knowledge of the extent of the husband’s property.