164 S.E. 777 | W. Va. | 1931
Lead Opinion
The court is divided on this case. I am not of the majority, but as the preparation of the opinion was originally assigned to me, will attempt to state the views of the majority and later dissent. *721
Wallace J. Williamson and Ellen Blair were married in 1917. Prior to the marriage they executed a contract, adjusting their marital property rights. He died in 1929, testate. The will limited his wife to the amount specified in the antenuptial contract, except as to some household goods, live stock, automobiles, etc. She renounced the will, and demanded of his estate in this suit the portion allotted her as wife by law. The defendants relied on the antenuptial contract. The circuit court found in her favor and cancelled the contract. The defendants appealed.
The majority of the court refuses to accept any of the testimony of plaintiff in her own behalf; consequently in preparing a general statement of the evidence, I have omitted any fact which depends on her evidence alone.
About 1884, Mr. Williamson, then 39 years of age, a handsome widower with four children, and a resident of Catlettsburg, Kentucky, came to what is now Mingo County, West Virginia, and engaged in the timbering business. There he met Ellen Blair, then about fifteen years old, illiterate but very beautiful. He fell in love with her, and she gave him her heart. He courted her ardently, openly and aggressively, presented her to his brother's family as his intended wife, and started her in school. Either through lack of application or of interest, Ellen made no educational advancement. In 1885, while on a trip to Catlettsburg, he married a Miss Clinefelter. He later explained to his cousin, Jane Evans, that the reason he did not marry Ellen (in 1885), was because she was uneducated. Within two months after his second marriage, he commenced sending letters to Ellen, confiding to his messenger, Elijah Ferrell, that since his first wife died he had loved no woman but Ellen. Shortly afterwards he virtually abandoned his wife and established Ellen in a home at Naugatuck on his timber operation, where he spent most of his time and where she served and ministered unto him with intelligence, loyalty and devotion almost continuously for the following thirty years — a wife in everything but name. She described her life at Naugatuck in these laconic sentences: "I stayed at home and made garden and raised chickens, and tended to the cows and cooked and *722 washed and ironed. * * * I done all that was to be done and what he (Mr. Williamson) told me to do and what I thought would satisfy him. * * * I worked to his advantage. * * * I tended to him day and night (during illness) and done everything a woman could do." Disinterested witnesses confirmed this description and testified without contradiction to acts and conduct by her, which materially promoted his logging business. She said of him he was "as kind as he could be" and gave her no occasion to doubt his love. The record discloses no stain upon her life except the scarlet letter she wore because of him. He was a shrewd business man, but his education was limited. Dr. Tunis Nunemaker, a witness for defendants, was their physician at Naugatuck, and was intimately acquainted with them for years. He testified that they were congenial and were interested in and devoted to each other.
In 1912, Mr. Williamson's second wife died, without issue. In January, 1915, he conveyed to plaintiff a tract of 103 acres at Naugatuck in satisfaction of all claims she had against him, whether for services rendered or to be rendered "or on account of any agreement, promise, default or undertaking whatsoever made by him," except a note of $3,500.00 he owed her for borrowed money. If this settlement indicated a breach, it was soon healed by his solicitude for her during an attack of appendicitis. He took her to a hospital in Columbus on June 5, 1915, for an operation and remained with her until she was discharged on July 4th. Shortly after their return to Naugatuck he failed in health and was taken to Denver, Colorado. Sometime after returning from Denver he began arrangements to marry her. He requested William Dameron, deputy county clerk, who issued the marriage license to keep the matter a secret, saying his sons were "raising Cain about him wanting to get married to Ellen, but he thought he owed it to her." The marriage was performed on January 3, 1917. On January 2nd, he had her sign the contract in question, agreeing that in consideration of $1,000 cash and $20,000 to be paid her upon or before his death, she would relinquish all the claims against his estate to which she would be entitled as his wife. He was a kind *723 and "a very devoted husband" said the Honorable M. Z. White, a witness for defendants. Miss French, a trained nurse who attended Mr. Williamson continuously during the last twelve years of his life, testified as a witness for defendants that Mr. Williamson and plaintiff seemed "to be perfectly contented with their marriage lot," and that he was very solicitious about her welfare. His estate is valued at about one and a half million dollars.
The plaintiff testified that she could not write her name and did not sign the 1917 contract; that she had no memory of such paper being read to her; that if it was read to her, she did not understand its terms (they were phrased in technical language); that she did not remember ever seeing or hearing of the contract until after her husband's death; and that at the date of the alleged contract she did not know the extent or the value of Mr. Williamson's property.
The record shows that plaintiff has remained practically as illiterate as when Mr. Williamson abandoned her education in 1885. She can read only with great difficulty and if she could sign her name in 1917 it was done mechanically. It is proved, however, by witnesses of integrity that she went through the motions of signing the contract, and that "a brief statement as to the main terms of the contract" was made to her at the time. It is also proved that in after years she recalled its provisions in a general way.
Equity ordinarily does not permit a man to drive a hard bargain with his prospective wife, without full disclosure of all the material facts. The law is clearly stated in Madden on Domestic Relations (the latest work thereon), section 73, as follows: "Persons about to marry are considered as occupying a relation of special trust and confidence toward one another. The usual consequence of confidential relationship follows, that the burden is upon the party, here the husband or his heirs, who profited by the contract, to show that it was entered into only upon a full disclosure of all the material facts. The most material fact, of course, is the extent of the property of the husband in which the wife gave up her rights. The burden is not upon the wife to inquire into this fact and the fact that she did not take advantage of her opportunities *724 to obtain information about it does not prevent her from assailing the settlement. The husband must have disclosed it, unless the wife actually knew it from other sources. * * * If the provision secured for the intended wife is disproportionate to the means of the intended husband, it raises a presumption of fraud or concealment, throwing upon those claiming in the husband's right the burden of disproving the same."
These principles are so deeply imbedded in American jurisprudence that extensive citation of authority seems unnecessary. See Hinkle v. Hinkle,
The majority of the court does not question the above statement of the law but excepts this contract therefrom on the following grounds: (1) that while executed on January 2, 1917, the antenuptial contract was entered into verbally at a conference held about October 1, 1916; (2) that no engagement to marry is shown to have existed prior to that conference; and (3) that without such an engagement the parties dealt at arm's length at the conference, and Mr. Williamson was under no obligation then to make any disclosures to her. This position is based on the following evidence: About October 1, 1916, Mr. Williamson had two of his closest personal friends, Dr. Nunemaker and Alexander Bishop, attend a conference between him and plaintiff, explaining that they wanted to change their mode of living and agree either to separate or to be married. Mr. Williamson and plaintiff conferred privately (for the most part) and then reported, according to Dr. Nunemaker "that they had agreed to fix this matter up between themselves." Mr. Bishop testified that plaintiff further said, "I am not to have or interfere with any of his property and he is not going to interfere with any of mine, we will both control our properties separately." The majority relies on Martin v. Collison,
"The contract recites that the parties 'are about to enter into a contract of marriage.' So far as appears from that document, no marriage agreement had been entered into before it was signed, and for aught that appears from that instrument its execution was a preliminary step to the engagement to marry. Whatever may be the usual custom as to the time antenuptial agreements are made, it is not universally true that they are made after betrothal. It may well be, and undoubtedly is true, that a man and woman may contemplate marriage but one or both of them have reasons why it is desirable, not only before entering into the marriage relation but before there is any agreement to marry, to settle the rights of each in the estate and property of the other by an antenuptial agreement, and this step precedes and is preliminary to the contract or marriage. In cases of that character there will be no confidential relation existing until after the contemplated contract is made, and the law governing the rights of the parties under such contracts would be the same as is applicable to contracts entered into by persons between whom there exists no confidential or fiduciary relation."
The majority therefore reverses the decree of the circuit court and dismisses the plaintiff's bill.
Reversed; bill dismissed.
Concurrence Opinion
In view of the vigorous dissent of Judge Hatcher, who wrote the opinion, the position of the court should be more fully stated.
As the Court of Appeals of Kentucky said, in Daniels v.Banister,
The rule thus stated is firmly established by a general concurrence of authority. "A court of equity, when called upon to consider an antenuptial contract, should examine and construe *741
the instrument in the light of the circumstances surroundingthe particular case, and enforce or annul the agreement according to the facts disclosed in the case before it. No arbitrary rule can be laid down which would apply to all antenuptial arrangements." In re Magg's Estate,
"As a general rule, * * * if the provision made for the wife is unreasonably small in proportion to the estate of the husband, this fact alone raises the presumption of a fraudulent concealment by the husband, and casts the burden upon him or those claiming in his right to prove that the wife had full knowledge of all that materially affected the contract. But themere fact that the provision made for the wife is greatlydisproportionate to the extent of the husband's estate will notrender the contract invalid where it appears from all theevidence that the contract was reasonable under thecircumstances and that no actual fraud or deceit was practicedupon the wife." 19 A. E. Ency. Law 1228.
In Yarde v. Yarde,
Hence, in this case, whether the provision for the plaintiff in the contract is so disproportionate to the interest she would otherwise receive in the estate of Wallace J. Williamson as to create a presumption of concealment and unfairness, on his *742 part, depends upon the admitted and proven facts and circumstances.
Williamson, a native of Pike County, Kentucky, although unlettered, possessed sound business judgment. He was also thoroughly honest and imbued with exemplary business integrity. After his first marriage, he settled in the city of Catlettsburg, Kentucky, where his four children, Ben M., (late U.S. Senator from Kentucky), Rush F., Fannie, and Tillie, were reared. In 1884, after the death of his first wife, he engaged in the timber business on Pigeon Creek in Logan (now Mingo) County, West Virginia, where he soon became acquainted with Ellen Blair who was then about fifteen years of age. In 1885, he married his second wife who cared for the children in the home at Catlettsburg where she lived until her death in 1912. About 1890, Ellen Blair came with her brother to live in the logging camp maintained by Williamson at the mouth of Pigeon Creek, fifteen miles west of the present site of the city of Williamson. The timber business kept him a great part of the time at Pigeon Creek, then practically a wilderness. Hence, the continuation of an illicit relation between him and Ellen Blair, which, according to the evidence, began about the time she took up her residence at his logging camp.
While engaged in timbering at Pigeon Creek, Williamson purchased a large tract of land in the county and laid out thereon the city bearing his name, which he later promoted and developed through Williamson Mining Manufacturing Company, a corporation. He assisted in the promotion of the first bank in the municipality, known as the Bank of Williamson, and later, organized the First National Bank of Williamson, of which he was president from its organization in 1903 until 1928. He later organized and managed the South Williamson Land Company through which he promoted and developed South Williamson, Kentucky, connecting it with Williamson, West Virginia, by a bridge, across Tug River, owned and operated by Kentucky West Virginia Bridge Company, which he also organized and managed. He dedicated sites for the courthouse, jail, hospitals, schools, water plants and churches in the city of Williamson.
His personal property at the time of his marriage to Ellen *743 Blair consisted of 680 of 1,000 outstanding, shares of First National Bank of Williamson, 1264 of 1690 outstanding shares of Williamson Mining Manufacturing Company, 455 of 500 outstanding shares of South Williamson Land Company, and 238 of 250 outstanding shares of Kentucky West Virginia Bridge Company. His real estate was situate on Pigeon Creek and in and around the city of Williamson. Plaintiff realized his predominant ownership in the several corporations. When asked whether she had been informed that he was a rich man, she said:"I knew he had a little more than anyone else, or I thought hehad * * *. I knew he owned some land and had a bank and thingslike that." One of her witnesses (N. G. Rosenfeld), who settled in Williamson some years after the marriage, testified that immediately upon his arrival in the city he was informed that Wallace J. Williamson was the only millionaire in the community. Williamson had made his fortune in and around the city of Williamson while living with Ellen Blair. She says he always informed her of his losses or reverses in business; and, according to her testimony, she at least partially supervised the logging business in his absence. She also takes credit for aiding in the purchase of the site for the city of Williamson by advising him, through a special messenger, that the property was for sale. Notwithstanding her want of education, she, nevertheless, possessed ample intelligence and business acumen. She not only conducted her own business affairs intelligently, but served as administratrix of her father's estate; and, according to her testimony, decided to bring this suit and engaged three prominent attorneys for the purpose, without consulting any of her friends or relatives. Some years after her marriage, she advised the compromise of a personal injury claim asserted by one of her brothers against the Norfolk Western Railway Company, and applied the proceeds from the settlement to the construction of a residence for him. The record discloses a number of conveyances of real estate to and from her, including a conveyance by her of right of way to Norfolk Western Railway Company in 1903 for a consideration of $3,600.00. These are some of her business transactions incidentally appearing in the record. *744
January 18, 1915, three years after the death of his second wife, Wallace J. Williamson conveyed to Ellen Blair real estate in the town of Naugatuck which (with a few small lots previously owned by her) she proved by one Huff Waldron (who lived near the property) to have been worth at that time from $30,000.00 to $35,000.00. At the same time, she executed a writing releasing him of all claims that she might have against him, except a note of $3,500.00 for borrowed money. In May, 1916, during a serious attack of pneumonia, he was attended by Miss Clara G. French, a trained nurse. Upon recovering sufficiently to travel, he went to Ashland, Kentucky, to the home of one of his daughters, and then, accompanied by a daughter, son, and Miss French, to Denver, Colorado, for treatment. On or about October 1, 1916, soon after his return to Williamson, he took with him Dr. Tunis Nunemaker and Alex Bishop (a former sheriff and member of the county court of Mingo county) to the home of Edna May Williamson, sister of Ellen Blair, to witness a conference between himself and Ellen to decide whether he should make further provision for her and end their relations or come to some agreement with her with a view to marriage. Immediately after this conference, lasting several hours, in the absence, for the most part, of Nunemaker and Bishop, Williamson and Ellen Blair, in the presence of each other, announced to Nunemaker and Bishop that they had settled their differences, she stating further: "I am not to have or interfere with any of his property and he is not going to interfere with any of mine; we will both control our property separately." From this and other evidence, it is obvious that Wallace J. Williamson and Ellen Blair came to an agreement at that conference to marry upon condition of a marriagesettlement. Thereafter, Williamson employed S.D. Stokes, a local attorney, to draft a formal contract (evidently) in conformity with and pursuant to the informal oral agreement. Later, the contract, as drawn by Stokes, was redrafted by Judge John F. Hager of Ashland, Kentucky, and mailed by him as redrafted from Ashland to Mr. Williamson, at Williamson, December 23, 1928.
The plaintiff proved by A. C. Pinson, a subscribing witness *745 to the contract, that on the day before it was executed, Williamson called the witness to his office to discuss with him the advisability of the marriage, at the time requesting Pinson to appear, when called, to witness the execution of the contract, which Williamson then explained to Pinson,stating that it had been agreed to by him and Ellen. This same witness, at the instance of plaintiff, also testified that immediately before the agreement was signed by the parties, in response to the proposal of the notary to read the instrument aloud, Williamson stated in the presence of Miss Blair and with her apparent acquiescence and approval, "That they had goneover these papers (the contract and deed of exchange) carefullytogether and they both knew the contents and it was notnecessary to read them." G. R. C. Wiles, a prominent attorney, who endorsed his name to the contract as a subscribing witness, and a notary, taking the acknowledgment of the parties thereto, testified that it seemed to him everybody in the city of Williamson knew before the marriage that Mr. Williamson and Ellen Blair "were about to get married; that they had made an antenuptial agreement and she was to get $20,000.00 when he died." The existence of such report and understanding among the people in the city of Williamson, immediately before the marriage, is in no way denied or controverted on behalf of plaintiff. The interest thus created was so pronounced that some of the officers of Williamson's bank feared that the marriage would injure its business. Wiles testified further that the substance of the contract was discussed in the presence of Ellen Blair immediately before its execution, and that she seemed pleased and to understand its provisions. Dr. Nunemaker, the other subscribing witness, testified that immediately before the contract was executed, Williamson, in response to an inquiry by Wiles as to whether the parties desired the contract read, said that it need not be read asboth parties had gone over the instrument, were familiar withits terms and perfectly willing to sign it. He testified further that Wiles briefly stated the terms of the agreement and plaintiff seemed to thoroughly understand the transaction. The one thousand dollars cash payment provided for in the contract was paid by check which she cashed *746 the following day. The contract was recorded in Mingo county, West Virginia, August 19, 1918, and in Pike county, Kentucky, September 11, 1918. According to the testimony of a number of witnesses, plaintiff kept a carbon copy of the agreement and often referred to it as her "marriage contract."
After the marriage, Williamson built, without charge, a residence costing $4,000.00 or $5,000.00, on property belonging to her in South Williamson, which he had exchanged with her for the Naugatuck property.
The marriage was one "of convenience only." Nancy Jane Evans, as a witness for plaintiff, testified that Williamson told her some weeks before the marriage "he could have made" Ellen his second wife, "but she was uneducated and he didn't think she was a proper companion for his daughters." William Damron, deputy clerk of the county court who issued the marriage license, at the instance of plaintiff, testified that Williamson at the time requested him to keep the matter a secret, stating that he was going to marry Ellen, notwithstanding the vigorous protest on the part of his family, because "he thought he owed it to her." The marriage was deferred until the marriage settlement could be executed. The minister who performed the ceremony came from his home in the country several days before, awaiting the pleasure of the parties. The marriage resulted from his choice of one of the two alternatives (disclosed by him to Alex Bishop and Dr. Nunemaker): (1) of making further provision for her and terminating their relations, or (2) of marrying her upon condition of a marriage settlement.
Wallace J. Williamson at the time of the marriage was practically an invalid and remained so during the rest of his life. Miss French, who had been temporarily discharged, returned a month after the marriage, and remained with him until his death. She says that plaintiff assisted her very little in caring for Mr. Williamson. He had four children and five grandchildren at the time of the marriage. In view of this fact, the condition of his health, his advanced age and his previous transfers of valuable properties to her, he was naturally unwilling to enter into a marriage engagement with *747 Ellen Blair except upon condition of the marriage settlement. The property he was giving her with that she already possessed would provide her a comfortable support. She was, under the circumstances, entitled to no more.
Plaintiff denies the execution of the release of January 18, 1915, and the marriage settlement of January 2, 1917, and knowledge of either transaction; says that nothing of importance was discussed between her and Mr. Williamson at the conference attended by Bishop and Dr. Nunemaker; and goes so far in feigning ignorance as to claim that she never heard of the contract until after Williamson's death, although it had been spread upon the public records of Mingo county, West Virginia, and Pike county, Kentucky, about 18 months after its execution, and was a topic of general discussion in the community before and after the marriage. Her testimony, in so far as it deals with alleged conversations between herself and her deceased husband is inadmissible; and in view of the admitted and proven facts and circumstances and the numerous contradictions of her statements on material issues by many disinterested witnesses, the remainder of her self-serving testimony is worthy of little, if any, credence.
Those advocating her cause mistakenly ignore the cardinal rule governing marriage settlements, already pointed out, by overlooking the admitted facts and circumstances in the case, clearly establishing the fairness and reasonableness of the contract, and the proven fact that Wallace J. Williamson entered into the marriage engagement solely upon condition of the marriage settlement. Hence, in selecting the vital issue in the case, they would consider merely the pecuniary difference between the contractual provision and her reasonable expectancy under the statute. They say this difference is so great as to create the presumption that she was induced to enter into the contract as the result of fraud practiced upon her by her deceased husband, which can be overcome only by proof that she knew, at the time of executing the agreement, the character, extent and value of his property and the nature and value of her reasonable expectancy in his estate under the statute; that defendants have not sustained *748 the burden of proof thus imposed upon them; and that a decision in her favor necessarily results.
Whether the provision in an antenuptial contract for the benefit of the prospective wife is grossly disproportionate to her reasonable expectancy in the estate of the intended husband depends upon the fact and circumstances of the particular case. In Suhor v. Gooch, 244 F. 361, an antenuptial contract, giving the woman, during Widowhood, "the interest" on fifty thousand dollars of the man's estate, valued at two hundred and forty thousand dollars, was upheld as a reasonable settlement, in view of the facts and circumstances of the case. In an able opinion, written by the late Judge Charles A. Woods of the Fourth Judicial Circuit, it is said: "What is gross disproportion (between the marriage settlement and the statutory expectancy) depends upon all the circumstancesappearing at the time of the making of the contract. It is notto be inferred from the mere fact that the settlement isconsiderably less than it turned out the wife would have gotbut for the settlement, any more than gross excess is to be inferred from the fact that the settlement gave considerably more than it turned out the wife would have got but for the settlement. If that were the test, settlements would be of little, if any, value."
In Smith's Appeal,
In Neely's Appeal,
In Wellington v. Rugg, (Mass.)
In Stevens v. Stevens, (Ky.)
In Gaines v. Gaines,
Most, if not all, of the cases cited involved prior marriage engagements. The rigorous rule governing in such cases, and stressed in behalf of plaintiff, presupposes a prior marriage engagement between the parties, and certainly should not operate with the same degree of strictness in a case like this where the marriage engagement arises out of, and serves as the consideration for, the marriage settlement. The unwillingness of a man to enter into a marriage engagement without a marriage settlement should prompt the woman to independent judgment. She is thus put upon inquiry, and cannot, as in the case of a prior marriage engagement, remain passive under the assumption that the marriage settlement is being made for her benefit. "The reason for the rule is that while parties are engaged to bemarried the relation is confidential, and the intended wife is supposed to place confidence in her husband." 1 Schouler, Domestic Relations, (6th Ed.), p. 521. But conceding that the rule applies to a marriage settlement which is a part of the marriage agreement as here and that there was a confidential relation between plaintiff and Wallace J. Williamson at the time of the antenuptial contract, she is not, under the facts and circumstances, entitled to relief. As already stated, a reputable Witness testified at her instance that Williamson advised him before the execution of the formal contract that the settlement had been agreed to; and that she signed and acknowledged the writing with apparent satisfaction after Williamson stated in her presence that he and she had gone over the paper carefully together and understood its contents. Defendants show further, without denial, that the general public were given advance information of the arrangement between the parties. Her several brothers and sisters, as well as friends, living in the community (including her brother Frank, who says he "helped her trade"), doubtless would have voluntarily advised her against the undertaking had they thought it an unwise bargain. She, as an intimate of Williamson, could not have overlooked the growth of his *752 fortune in the vicinity, and is, therefore, charged with such knowledge. She admits she thought he had more property than any one else.
Slingerland v. Slingerland, 132 N.W. 326-328, (involving an antenuptial contract between a man of mature years and a young woman who was pregnant by him), so firmly relied on in the dissent, differs from this case as follows: (1) The suit in that case was brought in the lifetime of the husband after he had failed for twenty years to comply with his promise to pay consideration for the contract "within a reasonable time after the marriage." (2) The woman there was practically penniless and had borne the man four living children. In this connection, the court said: "By this contract, if valid, defendant had it within his power to leave his wife practically penniless at his death, and without the means to support the children she might bear him. She has been his wife for 20 years, and four children of the marriage are living. The power to cast her and them from him, without a share of his great wealth, is abhorrent to every sense of justice, and equity should not be powerless to grant relief." Here, there are no children and none could reasonably have been anticipated at the time of the marriage. The woman in this case has an estate, including the twenty thousand dollars to be paid under the contract, of an estimated value of fifty to eighty thousand dollars. She has told others that she is worth $75,000.00. M. Z. White, a prominent business man of Williamson, who is familiar with her property, says it is worth from $70,000.00 to $80,000.00. She owns the home in which she lives and receives monthly $325.00 rental from her other real estate. The man she married maintained her in comfort during their unmarried and married relations, and bequeathed her at his death, the furnishings of a well equipped home, a Lincoln automobile, and other personal property which she still retains. (3) The contract in that case followed a marriage engagement; the contract here was a condition of the engagement. (4) The woman there was under great mental stress in a desire to conceal her shame and legitimatize her unborn child. The woman in this case does not seem to have experienced any moral qualms because of her previous improper relations with the man who was consenting to *753 marry her upon condition of a marriage settlement, and the only reason she gives for preferring the marriage to a continuance of those relations was her fear, in the latter alternative, of personal violence at the hands of one of his sons. (5) The woman there was young and inexperienced and "had no person of business judgment and experience with whom to advise in reference to such contract." The woman in this case was of mature age and seasoned business judgment, and had relatives and friends to advise her. (6) The contract in that case was known only to the parties and the attorney, representing the man, who prepared the writing. In this case, the agreement reached between the parties was generally known in the community before its execution. (7) In that case, the woman knew only in a general way that the man was wealthy. Here, the woman lived with the man while he was acquiring his fortune in the same community. She could not, under the circumstances have failed to realize the extent of his wealth, and does not even claim that she thought it was less than its actual value. She knew, or at least thought, he was worth more than anyone else. She does not claim he was richer than she thought. On the contrary, her evidence indicates, as is usual in such case, that she had overestimated his wealth. Expert accountants, testifying for plaintiff, fixed a theoretic valuation of Williamson's personal property, at the date of the contract, of $1,036,000.00. The valuation of his real estate as of that time was also, at best, a mere estimate. His estate, which had greatly increased during the intervening years, upon his death, was appraised at $824,911.96. (8) In that case, the man did not agree to the marriage simply to make "reparation for the wrong done" the woman. "He was making her his wife, the companion of his declining years, the mother of his child." Here, the man, an invalid in old age, was marrying the woman because "he thought he owed it to her."
It is said that the agreement announced by the parties at the termination of the conference attended by Bishop and Dr. Nunemaker is not sufficiently definite as an antenuptial contract and is further ineffectual because of the statute of frauds. This is all very true; but it is equally true that the facts and circumstances show the written contract *754 (reciting that it was made "upon negotiations for" marriage) to have been prepared and executed pursuant to and in conformity with the informal agreement.
Marriage settlements are formed as promoting providence and domestic happiness especially where the husband has other claims on his bounty. "Public policy does not inhibit settlements between persons contemplating marriage. Such agreements are ordinarily regarded with favor, as tending to adjust family disputes, and as making for the welfare of the parties. Therefore, the courts will seek to uphold them, and, in order to do so, will, if necessary, strain to the uttermost the interpretation of equivocal words and conduct." 1 Schouler, Domestic Relations (6th Ed.), p. 491. "Antenuptial contracts have long been regarded as within the policy of the law, both at Westminister and in the United States. They are in favor of marriage and tend to promote domestic happiness, by removing one of the frequent causes of family disputes, contentions about property, and especially allowances to the wife. Indeed we think it may be considered as well settled, at this day, that almost any bona fide and reasonable agreement, made before marriage, to secure the wife in the enjoyment either of her own separate property, or a portion of that of her husband whether during the coverture or after his death, will be carried into execution in a Court of Chancery." Stilley v. Folger,
In view of all the facts and circumstances, I am clearly of opinion that the contract is fair and reasonable and should be enforced.
Judges Lively and Woods concur in this note.
Dissenting Opinion
1. An agreement made upon consideration of marriage, when the marriage is "the end to be obtained or purpose to be accomplished " and not a mere incident to the agreement (27 C. J., p. 127, sec. 5), is invalid under section 5 of the Statute of Frauds, unless in writing. See Lloyd v. Fulton,
Plaintiff's position, however, does not depend upon proof of an engagement to marry prior to the execution of the contract. A confidential relation may exist between a man and a woman under other circumstances than a betrothal. Beach, The Modern Law of Contracts, sec. 825, says flatly that the law recognizes such a relation in "all cases in which confidence is reposed by one party in another." This declaration was originally made by Sir Samuel Romilly, one of counsel in Huguenin v. Basely, a leading English case decided in 1807, and reported in 14 Ves. Jr. 273 (285-6) and in 1 White Tudor Leading Cases in Equity (8th Ed.), 259 (265). Thirty years later, Lord Chancellor Cottenham recalled (with pleasure) the Romilly declaration and pronounced it the law, in Dent v. Bennett, 4 My. Cr. 269, 277, 41 English Reports 105, 108. It was elaborated in 1852 by the Vice-Chancellor, Sir George J. Turner, in Billage v.Southee, 9 Hare 534, 539, as follows: "No part of the jurisdiction of the Court is more useful than that which it exercises in watching and controlling transactions between persons standing in a relation of confidence to each other; and in my opinion this part of the jurisdiction of the Court cannot be too freely applied, either as to the persons between whom, or the circumstances in which, it is applied. The jurisdiction is founded on the principle of correcting abuses of confidence, and I shall have no hesitation in saying it ought to be applied, whatever may be the nature of the confidence reposed or the relation of the parties between whom it has subsisted. I take the principle to be one of universal application, and the cases in which the jurisdiction has been exercised — those of trustees and cestui que trust, guardian and ward, attorney and client, surgeon and patient — to be merely instances of the application of the principle." This conception of the extent of the principle has been accepted since then without question (so far as I am advised) both in England and the United States. See 1 Story Eq. Juris (14th Ed.), sec. 370; 2 Pom. Eq. Juris (4th Ed.), secs. 956 and 963; 1 Beach Modern Eq. Juris., sec. 125; Adam's Eq. (2nd Am. Ed.), 184; Lawson on Contracts (2nd Ed.), sec. 274; Kerr on Fraud and Mistake (6th Ed.), ch. 111; 26 C. J., p. 1158, sec. 72; 12 Rawle C. L., p. 232, sec. 5. *728
Martin v. Collison, (relied on by the majority) is materially different from the instant case in that the relations of the parties in that case had been merely casual prior to their agreement. The same situation existed in the related case of Inre Malchow's Est. (Minn.),
2. The circuit court found that the domicile of Mr. Williamson at the time of his death was in Kentucky. Upon his marriage in 1917 he moved to a home in South Williamson, Kentucky, where he resided until his death, except during time spent in Florida where he also had a home. The defendants proved that for many years prior to his last marriage *730
he resided and voted in West Virginia; that after moving to South Williamson (Kentucky) he with the plaintiff continued to vote in the city of Williamson (West Virginia); and that his business office remained there. Mr. Pinson (Plaintiff's witness) testified that Mr. Williamson claimed West Virginia as his home while residing in South Williamson. Hon. M. Z. White testified that the city of Williamson was promoted by and named for Wallace J. Williamson; that he took great pride and interest in the upbuilding of the city, giving liberally for all public purposes, and that the witness was told by Mr. Williamson that he had gone to South Williamson merely for the purpose of developing it, and that he expected to build himself a home as well as a vault to be buried in on Reservation Hill in the city of Williamson. His will, written in Florida in 1922, opens with this statement: "I, Wallace J. Williamson of Williamson, Mingo County, West Virginia." The finding of the circuit court was largely due to the residence in South Williamson, and a clause in the will which gives to plaintiff the motor vehicles, etc., which might be on the premises of the home at South Williamson "or (the will proceeds) other premises occupied as our permanent home at the time of my death." The circuit court construed this clause as calling South Williamsonson his permanent home; but it seems to me that the "other premises" is the one designated as the permanent home, rather than South Williamson. This construction is consistent with his intention expressed to Mr. White and with the explicit declaration opening the will — that he was "of Williamson, Mingo County, West Virginia." It is clear to me that Mr. Williamson considered his residence in Kentucky as temporary and regarded the city of Williamson as his permanent domicile. The law is settled that legal residence or domicile is fixed by intention, and that leaving an established domicile for a temporary purpose with intention to return, does not effect a change of domicile. 19 C. J. subject Domicile, sec. 19; Maslin
v. Hiett,
3. Accountants and experts on value have established without controversion that Mr. Williamson was easily worth one and one-half million dollars in 1917, his personal property alone being rated at one million and thirty-six thousand dollars. The plaintiff, as his wife in 1917, would have had an expectancy in his estate approximating $400,000, under the laws of West Virginia. The provision of $21,000 in the antenuptial contract is so unreasonably disproportionate to $400,000 as to require no comment. The cases cited by defendants against disparity are so different from the one at bar that they have no persuasive force, no matter what dicta they contain. For example, defendants' brief quotes at length from Suhor v. Gooch, 244 F. 361. In that case the antenuptial contract provided the wife with $50,000 when her expectancy in his whole property amounted to $70,000 to $80,000. The court found that "the marriage was one of convenience with a large factor of mercenary consideration rather than of sentimental attachment;" that the wife was educated and intelligent; and that there was "positive and unassailed proof of full disclosure" of the value of the husband's property. Again, several pages fromBibelhausen v. Bibelhausen,
Courts have sometimes upheld a disproportionate contract without full disclosure when the parties married late in life, if the provision was adequate for the wife's confort, on the ground that the wife would otherwise reap where she had *732 not sown. See Appeal of Neely, 124 (Penn.) 406, 16 A. 883. In the instant suit, however, plaintiff had given Mr. Williamson thirty of the best years of her life. She had "borne with him the sacrifice and labor of accumulation." The trial chancellor details her part as follows: "She looked after the home and assisted in the store. When Mr. Williamson went to Catlettsburg with timber she would give the men instructions as to their work, provide them with tools and look after the interests of Mr. Williamson as best she could during his absence. There is nothing in the record to indicate that the children or relatives of Mr. Williamson assisted him or had any part in assisting him to accumulate his wealth, but on the contrary the evidence clearly shows that Ellen Blair did much to assist him in rising to the position he held in the financial world at the time of his death. * * * That Ellen Blair gave her life completely to Wallace J. Williamson cannot be contradicted." It is suggested that the 103 acres he conveyed her in 1915 extinguished all his prior obligations to her. That conveyance may be said to satisfy all strictly financial claims. But it did not purport to recompense her for thoughtful care of him in health, and loving service to him in sickness — care and service comparable to that of the most devoted wife, and for which no charge was reckoned. Dr. Nunemaker (defendants' witness) testified that at the October, 1916, conference the parties discussed an agreement "whereby he (Mr. Williamson) could do something for her, provide for her in some way" in case they separated. This discussion demonstrates that Mr. Williamson did not consider himself discharged from all obligations to plaintiff by the 1915 conveyance.
In passing it may be pertinent to say that I would not appear as an apologist for the illicit conduct of the plaintiff. However, I remember her youth and inexperience when it began. I am not unmindful that if it commenced before his second marriage, it was under promise of marriage to her; and if afterwards it was under a great love which was then hopeless. In either event, I will let some other "cast the first stone." *733
The right of dower is of such antiquity that its origin cannot be traced. It was recognized in the great charter of 1215. It was appreciated so highly by the early writers on the common law that Lord Bacon is accredited with saying (in 1641) it was "the common by-word in the law, that the law favored three things; (1) life, (2) liberty, (3) dower."Speckman v. Speckman, 15 Ohio App. 283, 286. 9 Rawle C. L., subject Dower, sec. 4. From those early times to the present it has been most highly esteemed and carefully guarded by courts and statutes. The amount of dower a wife is to receive from her husband's estate is not fixed by the husband, or the heirs, or the courts, but by the statute. What the husband or the heirs or the courts may deem adequate for a wife cannot primarily defeat the statute. Her assent thereto is requisite. The expression of the leading authorities is that courts will "rigidly scrutinize" (Schouler, supra) settlements in lieu of dower, and ordinarily will not permit a man to bind his proposed wife to take less than the statutory interest unless she has full information of what she is doing. Also the burden is imposed on those who would profit by the settlement to show that the woman had that information. The defendants here offer little evidence on that subject, depending mainly on plaintiff's statements. She said of Mr. Williamson's property, "Of course I knew he had a little more than anyone else, or I thought he had, but I didn't know in what way." She named several tracts of real estate which he owned at that time but denied knowing their value. She knew that he had started a bank in the city of Williamson, but disclaimed any information of how much bank stock or other corporation stock he held, stating that he was not in the habit of discussing his business with her. Her testimony on this subject is not controverted in anymanner. Her inability to appreciate values is corroborated by Miss French (defendants' witness) who testified after intimate association with plaintiff for twelve years that she understood numbers and could count only to a limited extent, and that when the witness first met plaintiff (in 1917) she could not figure out the change due her from a twenty-dollar bill, on a small purchase. Plaintiff's ignorance of the extent of Mr. Williamson's *734
holding might appear singular in view of their intimacy, were it not for the fact that he was secretive about his business affairs and none of his closet friends and business associates had any definite idea of the extent of his estate in 1917. Alexander Bishop, who had been closely associated in business with Mr. Williamson for thirty years, explained his ignorance thereof by saying that Mr. Williamson "never talked about his business and his stock * * * he kept it as his own secret." If his confidential business associates had not been told the extent of his holdings, I see no reason for inferring that he had told plaintiff. "The mere fact that an intended wife who signs an antenuptial contract knows in a general way that the husband is reputed to be a wealthy man and to own farms and an interest in banks is not sufficient to meet the requirements of the equitable rule of fair disclosure or charge the wife with such knowledge of the nature and value of his property as to render an unfair contract binding upon her." In re Enyart,
There is also no evidence that plaintiff even knew what the law would secure to her as a wife, or that she was informed she would receive less under the contract than under the law. "It cannot be denied," said the supreme court of Kentucky, *735
"but that it is the settled rule that the prospective wife, in contracts of this character, in order to be bound thereby, should, before entering into the contract and at that time, be apprised of the nature and extent of her prospective husband's estate and the value of her marital rights therein which she by its terms is surrendering." (Italics mine). Stratton v. Wilson,
The plaintiff was contradicted as to her ignorance of the provision of the contract in recent years by four witness who are residents of other states, and had separately conversed with plaintiff. One of these is the wife of a defendant, and the other three are admitted friends of the defendants. These four witnesses may be worthy of all credence. On the other hand, had plaintiff been given to falsity, I am sure that her reputation would have overtaken her in the record. There is nothing there against her reputation for veracity, and the trial chancellor did not treat her as untruthful. Ordinarily we leave it to the trial court to pass upon conflicts in the evidence. If the testimony of the several strangers from the other states is to be accredited, however, (and the majority has said so), that evidence in no way affects what took place prior to and at the execution of the contract, and still does not sap the plaintiff's position. The facts that plaintiff executed the contract knowing that it disposed of her prospective right of dower, and that she remembered the contract in after years, do not exculpate Mr. Williamson. Said Lord Eldon in Huguenin v. Basely, supra, "The question is not whether she knew what she was doing, had done, or proposed to do, but how the intention (to do) was produced; whether all that care and providence was placed round her, as against those who advised her, which from their situation and relation in respect to her, they were bound to exert on her behalf." The record discloses "no care and providence" *736 placed around plaintiff by Mr. Williamson as against his own influence over her. "If influence is acquired," said Story,supra, section 431, "it must be kept free from the taint of selfish interests and cunning and overreaching bargains."
It was suggested in conference by the majority that because Mrs. Williamson was contradicted by the four strangers (to this court) she did not come into equity with clean hands. Upon an examination of the law, however, I find the clean hands rule is "confined to misconduct in regard to the matter in litigation, so that it has in some measure affected the equitable relations between the parties, arising out of the transaction."Foster v. Winchester,
It is within the province of the majority to scrutinize the testimony and conduct of the plaintiff both prior and subsequent to the contract as it has done. But a primary duty rests on the majority to scrutinize the conduct of Mr. Williamson, which it apparently has not done. Even a casual examination of the facts leading up to the execution of the contract discloses (1) that Mr. Williamson desired to pay the debt he had so long owed to plaintiff and to society, but at a heavy discount to himself and his estate; (2) that he had astute counsel prepare the contract with the sole purpose of securing that advantage; (3) that plaintiff had no part in *737 the preparation of the contract; (4) that he surrounded himself with friends and counsel when he presented the contract to her for execution; and (5) that she was alone, over-wrought, uncounselled, and without information of the extent of the prospective rights she signed away. The trial chancellor specifically found: "There is every reason to believe that every advantage was taken of the complainant in and about the preparation and execution of the contract. In answer to the question propounded 'was the contract fairly entered into'? this court answers it was not."
The fact that plaintiff may have greatly desired the marriage did not give Mr. Williamson the right to ignore her lack of information. It may be that she even would have accepted any terms dictated by him as the price of marriage; but neither that probability nor the illicit relation of the parties prior to their marriage makes their marriage settlement any exception to the general rule. Such an idea, declared Judge Cabell inCoutts v. Greenhow, 2 Munf. 363, 372, 5 Am. Dec. 472, was "supported neither by authority nor reason." Why ignore this violation by Mr. Williamson of the equitable principles prescribed by all writers on jurisprudence, and adopted and pronounced by this court? Why say we will "scrutinize" contracts of this nature if such overreaching (as this scrutiny reveals) is to be ignored? Is the statement more rhetoric? The excuse suggested is that plaintiff in her own right was worth some thirty-five or forty thousand dollars in 1917, and that the addition thereto of the twenty-one thousand dollars provided in the contract makes an amount adequate for her needs. That may be correct. But a strong objection to that excuse is, if adequacy is made the test, then we have an unstable rule. Adequacy varies as conditions change. What one court might consider sufficient, another might deem insufficient. The court would attempt to judge of adequacy from the standpoint of the woman, which would certainly be unsatisfactory to the court as well as to the woman. This test is also incomplete. It complies with only part of the established rule which was recognized by JUDGE LIVELY in Dehart v. Dehart, supra, and which requires in addition to *738 adequacy, that the contract be scrutinized to ascertain if the wife "entered into it with full knowledge of the fact of her right and without the exercise of undue pressure or influence upon her." The test prescribed in Dehart v. Dehart and by Pomeroy, Story, and all the leading authorities is complete. How much fairer and more satisfactory to adhere strictly to the complete rule and permit the woman uninfluenced to fix the sum she deems adequate for the sale of her own right, after she has had full information of the value of that right.
The case of Slingerland v. Slingerland, (Minn.)
"Plaintiff and defendant were married June 18, 1890. Defendant was a widower 67 years of age, and owned property worth $225,000, and was carrying on a prosperous business bringing in large profits. Plaintiff was 23 years of age and possessed of little property, except possibly 240 acres of land, for which defendant had before that time made a deed to her, the delivery of which deed was a matter of dispute at the trial. For several years prior to the marriage plaintiff and defendant had maintained illicit sexual relations with each other, and at the time the contract was executed plaintiff was pregnant with child begotten by defendant. After she so became pregnant plaintiff greatly desired defendant to marry her, and urged him to do so. Defendant consented to such marriage, and with a view to the same plaintiff and defendant, on May 20, 1890, went together to the office of defendant's confidential counsel in Winona, who at defendant's request had prepared the antenuptial contract in controversy and made three copies thereof ready for signature, and plaintiff and defendant then executed and acknowledged such contract. The nature of the contract was at this time explained to plaintiff by the attorney who had drawn it, its import was then understood by her, and she then knew that by its execution she would, in case she survived defendant, be excluded from any right in whatever property he might own at the time of his death in consideration of the sum of $5,000 to be paid to her as a condition of her executing such contract. Plaintiff then knew that defendant was wealthy and the owner of much *739 valuable real estate and personal property, but was not informed by defendant as to the full amount of his property or as to the details of the same; nor was she informed of the exact nature or extent of the interest that she as a widow would be entitled to under the law in the property of which defendant might die seised nor did she make any inquiries as to these matters. Plaintiff executed the contract freely and without objection, and without urging on the part of defendant or his attorney; but she then was, owing to her condition and the fact she had not been married to defendant, under considerable nervous strain and greatly desirous of a marriage with defendant, as he then well knew, and had confidence in the good intentions of defendant and his affection for her. She had no person of business judgment and experience with whom to advise in reference to such contract. Shortly after its execution the marriage took place."
In the instant case, the plaintiff was not pregnant, but the pregnancy of Mrs. Slingerland was not given major consideration by the Minnesota court, which held:
"These facts, without actual misrepresentations, urgings, or duress, are sufficient, in our opinion, to justify a conclusion that plaintiff's execution of the contract was not her own free act, but in reality the act of defendant done by her pursuant to his will. * * * True, mere inadequacy of consideration alone is not generally a ground for setting aside a contract. But it shows the unconscionable character of the contract, and raises a presumption of fraud, which may be overcome by evidence. The relations between the parties were confidential. Clearly the burden rested upon defendant to overcome this presumption, to show there was no fraud or concealment, and that plaintiff knew the extent, character, and value of his property and the nature and extent of her rights as his wife and widow. This burden was not sustained by proof that plaintiff knew he was wealthy."
I see no way to differentiate the instant case from theSlingerland case. I see no reason to except the instant case from settled equity principles, and would hold that the defendants *740 have not sustained the burden imposed upon them by law.
4. Defendants also contend that as plaintiff accepted the $1,000 cash mentioned in the antenuptial contract, she is estopped after the lapse of so many years to have the contract set aside. At the time the contract was signed, she and Mr. Williamson executed deeds exchanging certain properties. She testified that she understood the $1,000 was paid to her to make the exchange. The circuit court found specifically in her favor on this evidence, and that no estoppel arises. I cannot say the finding is wrong. However, since the $1,000 was accepted by plaintiff, I would deem it just for the administrator to charge her with that sum and its accrued interest.
I would modify the decree of the circuit court as to this $1,000 and also as to the domicile of Mr. Williamson at the time of his death, and so modified would affirm it.
Judge Maxwell authorizes me to say that he concurs in this dissent.
Dissenting Opinion
Judge Litz has flattered the "vigorous dissent" in this suit by taking five months in which to prepare his concurring opinion (hereinafter referred to for brevity as the concurrence). He has then utterly condemned it by saying that it overlooks "admitted facts and circumstances in the case clearly establishing the fairness and reasonableness of the contract." The gravity of this charge is my apology for further comment. *755
The concurrence deduces that plaintiff overestimated Mr. *756 Williamson's wealth in 1917. A most remarkable deduction, indeed, as the record contains no estimation whatever of his wealth by her.
I therefore conclude that the phrase "admitted facts" means facts which the concurrence admits but not the record.
"The Supreme Court of Illinois has the distinction of having solemnly decided (and this Court will, if it allows this decision to stand, share that distinction) that at this stage of their courtship, and up to the time when they complete the signing of the agreement, the man may deal with the woman upon the plane of ethics upon which horse-traders are required by the law to stand. He may bring this woman whom he has chosen and who has chosen him (tentatively) for life union in the holiest and most intimate relation known to mankind, before a company of strangers where her natural sentiments, if *759 she is the right kind of a woman, will prevent her from asking questions, and there, by his non disclosure of facts which she ought to know and consider, introduce her to holy matrimony by such sharp practice as would cause the revocation of the license of a stock-jobber or street vendor."
I can close this reply in no better language than the masterly criticism in the same brief of the position assumed by the concurrence as to the October conference.
"These parties either agreed to marry that day in October at Pond Creek or they didn't agree to anything. If they did agree to marry, and also agreed as to their property rights, they were in the confidential relation which made the harsh and inequitable bargain unenforceable in the circumstances. If they did not agree to anything, the incident has no bearing on the case. If we forget the record, we may take it either way. But we can't take it both ways, having made a contract out of nothing, go on and make it a contract between strangers, when the parties by making the contract became engaged persons. If the contract of October 1st. was the contract which was written in January, then the recital of the January contract that 'a marriage is intended to be shortly hereafter solemnized,' which conclusively shows engagement, must have been one of the terms of the October contract. The October 'contract' cannot be striped of everything except what is damaging to the plaintiff and still be identified with the January contract."
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