84 Miss. 63 | Miss. | 1904
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,
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.
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.