Steen v. Kirkpatrick, 84 Miss. 63

Steen v. Kirkpatrick

84 Miss. 63 | Miss. | 1904

Calhoon, J.,

delivered the opinion of the court.

Appellants rely on the following as facts: T. J. Steen, a widower, and Mrs. M. M. Robinson, a widow, each with a family of children, agreed to be married. After this agreement, *68and on the day before they actually were married, they made an independent oral agreement that the survivor should hold the share of the estate of the deceased spouse coming to him or her by law for life only, and that at the death of the survivor it should revert to the estate of the first decedent. Accordingly the husband being the first to die, the wife wanted her lawful share of his estate in money, so that she might know precisely the amount to go to her husband’s estate, and this, by general consent, was done; and she got $1,750 as her share, and while she lived fully recognized this was to be, when she died, the property of her husband’s estate. It is not easy to resist this conclusion of fact from the testimony of W. T. Steen, the eldest child of the deceased husband, abundantly corroborated as it is, if he was a competent witness; and we feel sure the learned chancellor must have arrived at the same conclusion, but must have based his decision on another or other grounds. After Mrs. Steen’s death, the appellant, for himself, and as agent for the other heirs of his father, T. J. Steen, undertook to probate this claim, and it was contested by the heirs of Mrs. Steen, and it was allowed by the auditors; but the chancery court sustained exceptions to their report, and disallowed the claim, and the Steens appealed to this court. The heirs of Mrs. Steen set up as an estoppel an agreement between Mrs. Steen and the heirs of T. J. Steen to abide the apportionment by certain persons, agreed on between them all, in division of his estate between his widow and his heirs as a final settlement; but we do not think, and do not think the chancellor thought, this went beyond the then claims as distributees under the law, or that it applied at all to this claim arising after her death.

The real and only questions are whether the agreement before marriage was voidable because not in writing, and whether W. T. Steen was a competent witness.

We think W. T. Steen was a competent witness. We need not now decide that he was, because of the decision in Coch v. *69Abernathy, 77 Miss., 872 (28 So. Rep., 18), and its citations, but do so because this claim is a controversy between the two sets of children, and did not “originate during the lifetime of the decedent,” Mrs. Steen. Covington v. Frank, 77 Miss., 606 (27 So. Rep., 1000). And this case also holds that the exception to the rule of competency stated in Code 1892, § 1740, must be construed strictly, and the exception must be within the letter and spirit of the act.

This same rule of construction applies to the statute of frauds, and an oral agreement which might he performed within a year will never be presumed to be in violation of it. Duff v. Snider, 54 Miss., 245; Bishop on Contracts, sec. 1276. In the case at bar the time of performance might have occurred within a year from the time of the agreement between T. J. Steen and Mrs. Robinson. The same rule of strict construction applies to that clause of the statute of frauds relating to agreements “made upon consideration of marriage,” so that, to fall within that clause, the agreement must be strictly in consideration of marriage, and not merely made in contemplation of marriage, as in the case before us, after the mutual promises to marry had been made and become binding. 1 Bishop, Married Women, sec. 806; Rainbolt v. East, 56 Ind., 538 (26 Am. Rep., 40); Riley v. Riley, 25 Conn., 154; Southerland v. Southerland’s Admr., 5 Bush., 591; Houghton v. Houghton, 14 Ind., 505 (77 Am. Dec., 69).

The probated claim in the record before us is for the amount of “money and personal property” received by the deceased from her husband, T. J. Steen’s estate. Of course, the prenuptial parol contract would not be enforced as to the real estate.

Reversed and remanded.