179 Ind. 267 | Ind. | 1913
Appellees instituted this action for partition of real estate against appellant, and her son by a second marriage with the father of appellees. The complaint alleges the death of Henry Mallow, seized of 183 acres of land described; that appellant is a second wife by whom Henry Mallow had one son, who is made defendant; that the four plaintiffs were the heirs at law of said Henry Mallow, and that the said Henry Mallow prior to marriage, entered into an antenuptial agreement with appellant, not set out or made an exhibit, or its terms alleged, except that by its terms each agreed that upon the death of the other neither should share in the property of the other; that they were married and lived together as husband and wife until his death, and that the antenuptial contract was not changed or modified; that she wrongfully claims some interest in such real estate but her claim is unfounded; that Henry Mallow left a personal estate of the value of $2000, and an .indebtedness of $500; that by reason of the foregoing facts, his widow has no interest in the real estate, and that it is the property of the five children; that she has been and is now the owner of eighty acres of land; that the real estate sought to be partitioned is indivisible, etc., and sale is prayed. A demurrer to this complaint for want of sufficient facts was
The evidence shows that on February 23, 1893, in contemplation of marriage, said Henry Mallow and appellant, each having children by a previous marriage, entered into an antenuptial agreement, by the terms of which among other things, each relinquished any and every statutory or other right in and to the property of the other, Mallow agreeing “to provide by proper testamentary bequest or other good, and sufficient conveyance” to appellant, certain specifically described real estate, during her natural life, remainder to his children. Marriage followed the execution of the contract, and a son was bom of this union, who survived Henry Mallow, as did appellant. Mallow, his wife joining him in the conveyance, in 1895, sold and conveyed the real estate which he had agreed to give her for life, for the sum of $1100, its fair value at that time, and he received the proceeds. The son was born in 1896. Henry M. Mallow died in 1907 intestate as to all his property. It does not appear what property either of them had at the time of the marriage, or at the time they conveyed away the property in 1895. There was evidence fixing appellant’s expectancy in 1908 at 20 years.
Upon this state of the evidence appellant tendered and requested the following instruction: “You are instructed that if there was an antenuptial contract between Henry M. Mallow and Lavina E. Wiley, and that the same was the one read in evidence, and if one of the considerations of said contract was that Henry M. Mallow should deed his wife the property described in such contract, or provide for her by will, and if after their marriage, the said Mallow and his wife joining, he conveyed away the property that Lavina E. Wiley (Mallow) was to have and appropriated the money to his own use, and made no provision in lieu thereof, by*
The court of its own motion gave the following peremptory instruction: “The court instructs you, gentlemen of the jury, that you find for the plaintiffs, and that the defendants, except Lavina E. Mallow, are the owners in fee simple of the lands in dispute as tenants in common, in equal shares, and that the same cannot be divided without' damage to the owners, and that the same ought to be sold; that the defendant Lavina E. Mallow, is the owner of a life estate in $1100.00, proceeds of the life estate in the antenuptial agreement, and that she is now fifty-two years of age. I have prepared a verdict for you to sign.” To the giving of which instruction no exception was reserved.
We need not, and do not decide whether the deed itself operated as a rescission, or whether the case may on full disclosure fall within the operation of the statute of frauds, but we do decide that the facts show that there was a modification or change of the contract. What it was, or what its effect may be in law, there is no evidence to disclose. Whether a waiver or estoppel may arise out of the facts, see, Becker v. Becker (1911), 250 Ill. 117, 95 N. E. 70, Ann. Cas. 1912 B 275, and cases cited; 17 Cyc. 692. There was but one issue presented, that of partition.
The verdict is contrary to law, and the judgment is reversed, with instructions to the court below to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 100 N. E. 836. See, also, under (1) 31 Cyc. 109; (2) 30 Cyc. 214; 31 Cyc. 109; (3) 30 Cyc. 216; (4) 21 Cyc. 1246; (5) 16 Cyc. 1050; (6) 9 Cyc. 311; (7) 21 Cyc. 1266, 1267; (8) 21 Cyc. 1265; (9) 21 Cyc. 1258; (10) 21 Cyc. 1249, 1258; (11) 21 Cyc. 1260, 1269; (12) 21 Cyc. 1205, 1267. As to the effect of marriage upon antenuptial contracts, see 73 Am. St. 898. As to the nature of the remedy of specific performance andi the grounds for invoking it, see 128 Am. St. 383; 140 Am. St 56.