delivered the opinion of the court.
The parties to this cause submitted to the district court an agreed statement of facts, upon which they asked for a determination of their respective fights. The court found for the defendants in error. Plaintiff in error brings the cause here for review.
The plaintiff in error and one D. D. Remington, now de
“Whereas, each of said parties had in his or her own right certain real and personal property at the time of said marriage and were also the father and mother, respectively, of children by former marriages, and,
Whereas, before their marriage with each other, and in consideration thereof, each of the said parties agreed with the other that none of their respective property rights should in any way become affected or changed by reason of said marriage.
Now, therefore, in consideration of the foregoing premises, and of the mutual covenants herein contained, the party of the first part hereby waives, releases, foregoes and disclaims all his rights in any and all property, both real, personal аnd mixed, wheresoever situate, of which the party of the second part, is or may become seized or possessed, аnd hereby expressly waives all right to inherit from said second party under the laws of any and all states of the United States, and hereby agrees that- the party of the second part shall have the right to dispose of all of her property by will and in casе the party of the second part fails to dispose of any of her property, of any kind, by will, then said property shall descend to her legal heirs, other than the party of the first part, and he shall not inherit anything from her.”
There was a similar covenant uрon the part of the wife waiving claim upon the property of the husband. ■
The husband left a will in which, in accordance with the sаid agreement, no provision was made for his widow; and she now repudiates the contract, and claims one-half of the estate under the statute.
It is contended by the plaintiff in error that the contract made before marriage, to wíiich reference is made in the written instrument, was void within the statute of frauds
It is true that in the recital it is stated that the parties, in consideration of marriage, made the agreement; but the agreement itself shows that it was not so made. Contracts in consideration of marriage provide fоr the moving of some benefit to one of the parties as an inducement for marrying. There is no such case here presеnted. The facts show that these parties were arranging to,preserve to themselves respectively the right to disposе of the property held before marriage, and to protect their respective heirs, or the beneficiaries undеr their wills, in their property rights, as against any claim which might arise because of the marriage relation. The words “in consideratiоn thereof” are not to be construed as indicating that either party was induced to marry the other by reason of these covenants. Indeed the covenants conflict with such an idea. The parties were agreeing that they would secure nothing from each other through the marriage relation. It is clear that the words “in consideration thereof” were used to show a situation which would have been properly described by saying that the parties had made the oral agreement in contemplation of marriage.
Furthermore, it is wholly immaterial, in the view We take of this question, what was the agreement made before marriage. The contract in question, reduced to writing and signed by the parties, is made upon a consideration of mutual promisеs, and in it each releases to the other all right in or control over the other’s property; and likewise waives all right to сlaim the same under any law of descent. Whatever may be the rule in those states having special statutes limiting the rights of partiеs during coverture, or in states following the common law, there is no reason why in this state, where woman has been relieved of her disabilities and specifically authorized to contract with any and every one,
The tendency of the cases seems to be, even where the disabilitiеs of coverture have been removed by law, to adhere more or less to the old construction as to a woman’s rights tо contract with her husband.
In the case of Unger v. Mellinger,
In this case it appears that the widow seeks to have the district сourt, in construing her husband’s will, sanction her admitted violation of a solemn contract with her husband, now deceased. She is now at libеrty to dispose of her property which was involved in the agreement without the possibility of loss by this breach of contract on her part. This is grossly inequitable, a manifestation of bad faith, and ought not to be tolerated.
The district court was right in its judgment and the judgment is accordingly affirmed.
Mr. Chief Justice Garrigues and Mr. Justice Burke concur.