77 Wis. 557 | Wis. | 1890
The facts of this case are substantially as follows: On the 19th day of October, 1882, one Calvin West, a widower, and the father of several children, at the age of eighty-five years, then residing in Walworth county, in this state, and the owner of a half section of land in section ‘25, township 1, range 15 E., lying in said county, intermarried with the plaintiff, then one Elizabeth Butler, a widow, and twice before married, and the mother of at least one child, then being in said county, and of the age of sixty-one years, and for a time they lived in the house and on the homestead of the said Calvin West on said land. A short time before said marriage, and on the 16th day of August, 1882, the said parties entered into a written antenuptial agreement, signed by both of them in the presence of witnesses, by which the said Calvin West agreed to give to the said Elizabeth $1,000 from his estate, on his death, if she survived him, and her support as long as she lived, in consideration and in lieu of her dower in his lands, and in full of all allowances whatever and claims against his estate; and the said Elizabeth agreed to marry the said Calvin, and be to him a ti-ue and faithful wife. This contract was executed in duplicate, and delivered to each party respectively. This is the substance of the contract as derived from the testimony of witnesses, the originals having been lost or destroyed. This would seem to be the substance of the agreement, but it was probably put in better form, having been drawn by A. S. Spooner, Esq., an attorney at law of
The learned circuit court found “ that the said Calvin West and the plaintiff in this action, prior to their marriage, made an antenuptial agreement of some kind, but what were the terms of such agreement in full does not satisfactorily appear from the evidence.” We are compelled to differ from the learned circuit court and hold that the terms of said agreement do both satisfactorily and sufficiently appear, and that said agreement was valid and binding on both of said parties as an antenuptial agreement, by which the plaintiff surrendered her right of dower, in the lands of said Calvin West, and all claims against his estate, in consideration of her support during her life, and $1,000 of his estate. The plaintiff herself testified that the agreement was signed by both of them, and one of them delivered to her, and that it was executed two or three months before their marriage. In Wilson v. Holt, 83 Ala. 528, an antenuptial'agreement that had been destroyed was established on less evidence. There was perfect agreement of the witnesses as to its contents, and no contradictory testimony on the question. At the time of said marriage, the plaintiff had known the said Calvin West for twenty years, and she was entirely destitute of property and of means of support, except the use of a house and lot. This agreement was made in view of their prospective marriage, and their marriage was one of its stipulations, and based upon its faith and validity. It may be said to have been one of
The great importance and materiality of this antenuptial agreement sufficiently appears. Calvin West died on the 28th day of March, 1886, where he had lived with the plaintiff for some time, at the residence of the plaintiff’s married daughter in Portage county, in this state, with whom they had been boarding. Tie left a personal estate, valued by the referee at $10,000, and proved to be worth $17,000, and said real estate was appraised at about $9,000. He left a will, by which he devised to the heirs of six of his children, and to an adopted son, all of his property, in certain amounts, to the extent of about $6,000, and the residue thereof to be equally distributed between his heirs at law. Letters of administration were granted by the county court of Portage county to the said Walker, one of the respondents. About two weeks before the said Calvin West died, he executed an instrument in writing, drawn by the said Walker, of substantially the same terms of said antenuptial agreement, with the additional stipulation on his part giving to the plaintiff all his household furniture and clothing, and making the $1,000 payable in government bonds. This instrument repeats that it should be in full satisfaction and payment of all and every claim against his estate, including dower and all other allowances. There is only one stipulation in said instrument on her part, in addition to those in said antenuptial agreement, but of no particular consequence, and that is that neither should contract debts without the consent of the other. The first clause of this instrument is that “ all previous contracts and agreements thereto ” are thereby revoked and made null and void.
This action is brought in the Portage county circuit court, where the said Calvin West died. It is stated in the complaint that the plaintiff filed in said county court of Portage
The above last-mentioned instrument was introduced in evidence by the learned counsel of the plaintiff, in order to show that the said antenuptial agreement had been canceled and revoked, and they so contend on this appeal; and it appears that she has set aside and waived said instrument also, and now demands her legal -rights in the estate, or the provisions made for her by ..law; and this claim was sanctioned by the circuit court. This statement of the case makes intelligible the questions of law raised on the appeal.
1. The learned counsel of the appellants contend that the circuit court of Portage county, in which the suit is brought, had no jurisdiction of the case; that it is a local action, and should have been brought in the Walworth county circuit court, within whose- jurisdiction the lands are situated. Without following the argument of counsel to any further extent, the present statute appears to settle the question beyond controversy by the clear and explicit terms thereof. Sec. 2620, R. S., provides that “ every action named m either of the classes i/ro the first subdivision of the preceding section must be commenced in the county in which the property, or some part thereof, is situated, subject to a cham,ge of the place of frrial, as hereinafter provided.” Then follows, in
2. The main and important question in this case is, What effect had the post-nuptial instrument on the antenuptial
It follows that the validity of - the old contract was not destroyed or in any way affected by the new one; but was merely altered or changed in that one respect. Beyond what was copied fronj. the old contract, it did not require her signature. It was his sole act. It was the additional gift of the furniture and clothing. The same consideration is preserved. It was not a new contract, or any contract •between them which he or they could not make in consequence of their marriage. He had a right to change the old agreement, and give her more than it provided; and he ■did so, and she accepted it. That is all there is of it. If he was under any disability to so change the antenuptial agreement, then it was not changed. It is very clear that there was no intention to destroy that agreement so as to destroy •or impair its legal effect. It was perpetuated and continued in the new instrument. This is the only reasonable construction of the transaction. The claim, therefore, that this instrument canceled and avoided the antenuptial agreement .so as to render it of no effect, and that the plaintiff had the right to waive the benefits of the so-called second agreement, and take under the law, is unfounded; and the findings .and judgment of the court to that effect are not supported by the evidence. The plaintiff is bound by said antenuptial contract as changed or altered by the said instrument; and her interest in the estate of Calvin Vest, deceased, must be measured by what she agreed to receive therefrom in and by said agreement, so altered. She has no dower interest in said lands, or any interest in said estate, under the law, ■or except as so stipulated in the agreement so changed or •altered. The evidence by which these facts appear was introduced by the plaintiff, and therefore the objections to it,
It is contended by the learned counsel for the respondent that it appeared from the evidence that the said Calvin West deceived the said plaintiff as to the extent and value of his property, by failing to inform the plaintiff thereof, and that if she had known the extent and value of the same she would not have entered into said antenuptial agreement, and that she was defrauded therein, and that therefore said agreement is void and of no effect. The testimony is that the plaintiff had known the said Oalvin West for about twenty years before that time, and that she had lived in his vicinity and among his relatives. These facts, together with her omission to make any inquiry about it, would seem to repel any claim that she was ignorant of it. But she is estopped by having accepted an alteration of said agreement by the addition of the household furniture and clothing of the said West, by said instrument, which increased her interest in his estate but very little, if any, after she had lived with him over four years, and must be presumed to have known then the extent and value of his estate; and she insists upon the validity of such subsequent agreement, and the effect thereof to cancel and destroy the antenuptial agreement. This shows very clearly that she either knew the value of his estate or would not have refused to enter into said agreement if she had known it, for she repeated the agreement with such slight alteration after she did know it.
This is a question of fact on the evidence with this court, and the legal principles involved are elementary and need no authorities; and the questions argued by the learned counsel on both sides need not be considered so far as they relate to the case, treating the instrument last made as an original agreement, valid or otherwise. The plaintiff has
By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss the complaint on its merits.