26 Ind. App. 408 | Ind. Ct. App. | 1901
This action was commenced by appellant’s decedent, Joseph Green, during his lifetime, against appellee, William Harrison, administrator of the estate of Abigail Green, deceased. The complaint, or petition, avers, in substance, that Abigail Green departed this life intestate on the lYth day of September, 1898, leaving surviving her the petitioner, her husband, “and children her heirs.” .That she left personal property of the probable value of $3,500 in cash and notes, which are in the hands of her administrator. That the petitioner as the widower of said decedent is entitled to one-third of said personal property. That the children and grandchildren of said decedent claim all of said property, and the administrator of said estate is claiming the right to pay to said children and grandchildren all of said personal property, and refuses to recognize the right of the petitioner to any part of said decedent’s property. The relief ashed is that the court order the administrator of said Abigail Green’s estate to pay over to the petitioner upon the final settlement of the said estate one-third of all moneys received therefrom.
This pleading was not tested in the lower court by demurrer or otherwise, and is not challenged here. Appellee appeared by counsel and filed an answer in three paragraphs. A demurrer was sustained to the third paragraph of answer. The first paragraph was a general denial. The second paragraph, which was held sufficient below, was as follows: “Defendant says that the plaintiff ' and said decedent entered into a mutual agreement before their marriage, in consideration of their marriage together, that 'the survivor of them should not take, as heir of the one who should decease first, any portion whatever of his or her
After the cause was at issue, and before the trial, the said Joseph Green died, and upon motion the administrator of his estate was substituted as plaintiff. There was a trial and finding in favor of appellee, defendant below.
The questions discussed upon appeal arise upon the ruling of the lower court in overruling appellant’s demurrer to the second paragraph of appellee’s answer, and in overruling his motion for a new trial.
Some of the undisputed facts were that in the year 1880, appellant’s decedent, Joseph Green, was a widower aged about seventy years, and appellee’s decedent was a widow aged about sixty years. They desired to marry. They each had children by a former marriage. In consideration of their contemplated marriage they entered into an oral ante-nuptial contract. This contract was to the effect that the survivor, whether it be husband or wife, was to take no interest or share of the estate of the deceased one, and the property of the husband upon his death was all to go to his children, and the property of the wife at her death was all to go to her children. They were married in a few days after the
Antenuptial contracts are favored by the law. They adjust property questions and promote domestic happiness. In such contracts no formality is required, and a liberal construction will be given them, in every case giving effect, if possible, to the intention of the parties. Buffington v. Buffington, 151 Ind. 200; Kennedy v. Kennedy, 150 Ind. 636; McNutt v. McNutt, 116 Ind. 545, 2 L. R. A. 372.
The rule is well established that parties contemplating marriage may orally agree as to the disposition of their property, and they may confirm such agreement in writing after marriage. Buffington v. Buffington, supra; Claypool v. Jaqua, 135 Ind. 499. Such contracts are upheld in equity. Leach v. Rains, 149 Ind. 152. And it is not necessary to their validity that anything should have been paid by the wife to the husband, or that the consideration therefor should be stated in the contract. 6 Am. & Eng. Ency. of Law (2nd ed.) 158; §6630 Burns 1894.
It is the rule in Indiana that either party may show the true consideration for any purpose except to defeat the operation of the conveyance. Nichols, etc., Co. v. Burch, 128 Ind. 324; Smith v. McClain, 146 Ind. 77.
And it has been held that a contract between husband and wife, free from fraud or undue influence on his part, whereby the wife releases her right of inheritance in the husband’s property, if she survives him, is valid. Leach
That a husband may by contract release his right to inherit the property of his wife, if he survives her, has never been questioned. Leach v. Rains, supra.
The marriage was a sufficient consideration for the contract waiving any interest in the estate of his wife in tho event he survived her. It was said in Leach v. Rains, supra: “Appellant’s capacity to contract was not impaired by the marriage. He possessed the same power to contract after his marriage as before. He could release his right in the property of his wife during the marriage and his right to inherit from her afterwards, the same after his marriage as before.” In the case at bar, the agreement was mutual, entered into before the marriage, but in contemplation of marriage. The agreement to marry was the consideration for the contract, which provided for the disposition of the property of the contracting parties. After the marriage the contract was reduced to writing. The evidence which was introduced over appellant’s objection did not, as is contended by counsel for appellant, tend to change or vary the terms of the written contract, and was not introduced for that purpose, and could not have been used to prove the terms of the contract. It simply went to the question of consideration.
We think the contract entered into between husband and wife in this case a valid and enforceable one, and that the evidence objected to was properly admitted for the purpose of showing the consideration for the contract, if, indeed, it was necessary, under the issues, for the appellee to make any such proof. We find no error. Judgment affirmed.
