Shaffer v. Matthews

77 Ind. 83 | Ind. | 1881

Elliott, J.

This record presents a single question. That -question is as to the effect of an antenuptial contract entered into between the appellant and the appellee’s intestate. 'That agreement, omitting signatures and formal parts, is as follows : “Alfides of agreement entered into by and between David Shaffer, of the first part, and Elizabeth Cobb, of the second part: Whereas a marriage is intended to be had and solemnized between the said David Shaffer and Elizabeth Cobb, the party of the first part, for himself, his heirs, executors and administrators, doth covenant ánd agree to and with the said Elizabeth Cobb, his intended wife, in case the-said intended marriage shall be had and solemnized between the parties, that, at'his decease, should she outlive him, the party of the second part shall be entitled to the one-half of' the personal property by them possessed after the debts, should there be any, are paid, and also the one-third of the-rents and profits of the farm on which I live, to her own proper use during her natural life, — at her decease to go to-my heirs. And whereas the party of the first part is indebted to the party of the second part in the sum of four-hundred dollars, it is agreed by the party of the second part, that the said four hundred dollars is to. remain in the hands-of the said party of the first part until his decease, then is-to be paid out of the real estate-of the party of the first part to the party of the second part, or her heirs. It is-agreed between the parties, that the property of the party of the second part shall remain her own to do as she thinks-fit with.”

It is contended by appellant’s counsel, that this agreement does not bar her right, as the widow of appellee’s intestate, to the five hundred dollars allowed by statute. We-think otherwise. The instrument js awkwardly drawn and incorrectly worded, but there is enough in it to clearly show that the purpose of the parties, in executing it. was to make-full provision for appellant in the event of her becoming the widow of the man whom she expected to marry. There can be no doubt that the man intended to limit and define the-interest which the woman, whom he expected to make his-wife, should take in his property, should she survive him ; nor- can there be any doubt that the woman accepted the-provision so made for her. The right of the woman to retain absolute ownership and control of her separate property,, the provision that she should take one-half of all her hus"band’s personal property, at his death, and enjoy during life the farm of the husband; are plainly stated, and so •stated as to distinctly show an intention to make provision for the woman, in case she became a widow, different entirely from, and in lieu of, that made by statute. It is very •evident, from the whole tenor of the contract, that it was not intended that the woman should take both under the •contract and under the law. There is, of course, no question •of election, for the antenuptial contract settled and adjusted the rights and interests of the parties, leaving nothing open to choice, upon the death of either.

Petition for a rebearing overruled at November term, 1881. Opinion filed at May term, 1881.

The court below gave the proper construction to the contract, and as this was, and is, the only question in the case, rthe judgment should be affirmed.

Judgment affirmed.