Detroit Trust Co. v. Baker

203 N.W. 154, 230 Mich. 551, 1925 Mich. LEXIS 558

Opinions

Wiest, J.

This is a suit for specific performance of an antenuptial agreement, made by Herbert L. Baker and Cora Louise Turner, now Louise C. Baker, as follows:

“Antenuptial agreement, made this tenth day of February, A. D. 1917, between Herbert L. Baker of Detroit, Michigan, party of the first part, and Cora Louise Turner, party of the second part, witnesseth:

“Whereas the said parties are intending to enter into the bonds of matrimony with each other and are desirous of making a pecuniary provision for the benefit of said second party in lieu of dower.

“Now, therefore, it is mutually agreed as follows: Said first party agrees to make out of his estate the pecuniary provision which is set forth and described in a certain agreement of even date herewith executed by him and accepted by said second party, whereby said second party becomes entitled to the payment'to her of the sum therein named out of the estate of said first party in lieu of dower in case she shall survive him as his widow.

“And said second party hereby acknowledges the receipt of said pecuniary provision in lieu of dower and in consideration thereof agrees to and hereby does release and bar all claim or claims of dower which upon the death of said first'party she as his widow might otherwise have in any and all lands of which he now is, or hereafter may become owner, either in fee or otherwise, and wheresoever situated.

“In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.

“Herbert L. Baker. (L. S.)

“Cora Louise Turner. (L. S.)”

This was acknowledged before a notary by Mr. Baker, April 19, 1917, but not at any time by Mrs. Turner. The pecuniary provision executed by Mr. Baker was as follows:

“Agreement made this..............day of February, A. D. 1917, between Herbert L. Baker, party of the first part, and Cora Louise Turner, party of the second part, the same being the agreement referred to in a certain agreement between said parties for release of dower and bearing even date herewith

“Witnesseth as follows:

“Said first party agrees that in case she shall survive him as his widow the said second party shall thereupon be entitled to receive out of his estate the sum of ten thousand dollars the same to be paid to her as a creditor of said estate the same in all respects as other creditors thereof are paid.

“And said second party agrees to and hereby does accept the foregoing provision in lieu of any and all dower rights to which she might otherwise become entitled as the widow of said first party.

“In witness whereof the parties have hereunto set their hands the day and year first above written.

“Herbert L. Baker. (L. S.)

■ (L.S.)”

Mr. Baker at the age of 71 years, and Mrs. Turner at the age of 31 yeárs, were married at Windsor, Ontario, April 21, 1917, and lived together in the city of Detroit, where Mr. Baker was an attorney-at-law, until his death June 9, 1921. November 30, 1920, Mr. Baker made his will in which he bequeathed to his wife the household effects, except in the room of his sister, and placed the residue of his estate, about $300,000, in trust, making the Detroit Trust Company trustee, with directions to pay his wife two-fifths of the net income therefrom during her life, so long as she remain unmarried, and the other three-fifths, one-fifth each to his sister, a niece, and a nephew. This provided an income of about $6,000 a year for defendant. Deféndant by cross-bill asserted she was induced to sign the agreement by Mr. Baker fraudu lently representing it was a power of attorney; that she refused to sign the writing fixing the pecuniary consideration, had filed her election not to take under the will and asked for decree voiding the agreement and granting her a widow’s rights in the estate, including dower. Decree was granted plaintiifs and defendant appealed.

Counsel for defendant picture a crafty old lawyer wooing and winning an unsophisticated woman’s promise of marriage, and then obtaining from her an antenuptial agreement under the fraudulent representation that it was a power of attorney. We are not so impressed. Defendant was a widow 31 years of age evidently without means and after the death of her first husband had acted as a store clerk and assistant bookkeeper. Mr. Baker was an attorney-at-law of good standing and a man of means. The evidence has been carefully read and we are persuaded that defendant’s charge of fraud and imposition, practiced by Mr. Baker in obtaining her signature to the ante-nuptial contract, has not only no support in the evidence but is completely refuted by her statements to Mr. Newton and negatived in the most conclusive manner by the bounty of the very man she brands as a scoundrel. If Mr. Baker deceived defendant by lying about the nature of the paper she signed, he must have had a change of heart after marriage when he made his will and provided her a splendid and sure income for life. This does not accord with the character she would have us fasten to the man whose lips are closed in death. We believe Mr. Newton told the truth, and defendant did say to him when she produced the antenuptial agreement and the pecuniary obligation, right after Mr. Baker’s death, that she had always kept the obligation and had found the agreement among Mr. Baker’s papers. This being true, she knew all the time she had not signed a power of attorney, and was fully aware of what she. did sign, for the pecuniary obligation she held informed her it was an agreement giving her $10,000 out of his estate, in lieu of dower, in accordance with the agreement to that effect held by her husband. Defendant claims the statute of frauds renders the agreement void. We understand this claim rests upon the fact that defendant did not sign the writing declaring the pecuniary obligation. The point is without merit. Defendant signed the agreement and that was the only paper necessary for her to sign. The pecuniary provision was signed by Mr. Baker and that bound him and his estate. Both writings related to one matter and must be construed as if the pecuniary obligation had been written at the foot of the agreement. Whittlesey v. Herbrand Co., 217 Mich. 625. Mr. Baker’s estate is bound to pay the obligation and defendant can enforce payment. The agreement, signed by both parties, declared the existence of the pecuniary obligation writing and referred to it as “executed by him and accepted by said second party” (defendant). Defendant also claims the amount of the pecuniary provision was so inadequate, considering the means of Mr. Baker, as to speak of concealment of his wealth, and show imposition and fraud. The agreement related solely to dower and did not release Mr. Baker from any obligation of marriage or in any manner interfere with defendant’s right to a widow’s share in his personal estate. There is no sentiment in an antenuptial contract. It is a business proposition, animated by a desire to curtail or enlarge rights in property incident to marriage. Here the •evident purpose was to curtail prospective rights of dower by way of pecuniary adjustment. The prime reason for such an agreement, and a proper one, could not move the parties, or exist, if an antenuptial agreement must provide for as much as the law allows, in the absence of an agreement. We find no indicia of fraud, by way of misrepresentation or concealment or inadequacy in the amount agreed upon in lieu of dower. But it is said the sum given warrants the assumption that the confidential relation arising out of the promise to marry was abused. Conceding betrothal begets a confidential relation, it does not follow, ipso facto, that it engenders fraudulent desires in the swain, even though he be less bucolic than the. widow about to be engrafted or that fraud is presumed to have been practiced to induce a widow of 31 to marry a man of 71, and agree to accept in lieu of prospective dower a substantial sum. In the absence of any testimony showing false representations, deceit or the withholding of information, we cannot predicate a finding of fraud or an abuse of the confidential relation, merely upon the sum here agreed. Neither does such sum, under the disclosed circumstances, require plaintiffs to rebut a presumption of fraud. Until some existence of fraud more substantial than a possible wrong guess is presented there is nothing for plaintiffs to rebut. Defendant was permitted to testify to matters equally within the knowledge of the deceased, in order to make the record, for review, but the trial judge held such testimony-inadmissible and refused to consider the same. In this the circuit judge was clearly right. The statute, 3 Comp. Laws 1915, § 12553, barred the defendant from testifying to any matter equally within the knowledge of the deceased. But defendant claims the bar of the statute was lifted by plaintiffs calling Mr. Newton to show admissions and statements made by her after the death of her husband, relative to the antenuptial agreement. Defendant’s testimony in reply to such claimed admissions and statements was proper upon the question of whether she made them but did not and could not constitute substantive evidence to sustain her charge of fraud. Campbell v. Sech, 155 Mich. 634; Harris v. Cable, 113 Mich. 192. The statute did not close the lips of defendant while out of court, and showing what she so said did not constitute a waiver in court and remove the seal from her lips placed there by the law. Harper v. Corcoran, 188 Mich. 474. It is claimed the antenuptial agreement does not comply with the statute (3 Comp. Laws 1915, §§ 11663-11666). Under the evidence we need consider only section 11665, which provides, in substance, that any pecuniary provision made for the benefit of an intended wife, and in lieu of dower, if the woman be of full age and express her assent by becoming a party to such an agreement, will bar her right of dower in all the lands of her husband. We think the agreement meets the statute; but whether so or not is of no moment, for it is clearly a valid antenuptial agreement, and the statute does not, either in terms or intent, establish the sole form or method to be employed. Hockenberry v. Donovan, 170 Mich. 370. The statute is in the nature of a recognition of all valid antenuptial agreements.

We find no occasion to discuss the question of whether defendant is to be held to have ratified the agreement. The agreement is valid and requires no ratification.

There remains the question of whether payments, upon land contracts executed by Mr. Baker, collected and to be collected by the executor, constitute personal estate, of which defendant takes • a distributive share under the statute, she having elected not to take under the will, or, whether such land contracts and payments constitute real estate, in which she has barred her dower? The circuit judge held that land contracts in which Mr. Baker was vendor and now held by his estate, are deemed real estate and not personal, and defendant not entitled, as widow, to a distributive share of any moneys received or to be received thereon by the executor. The learned circuit judge appears to have followed the rule stated in Re Estate of Pulling, 97 Mich. 375. The rule there stated is not in line with the earlier decisions upon the nature of the interest of a vendor in a land contract (Wing v. McDowell, Walk. Ch. 175; Fitzhugh v. Maxwell, 34 Mich. 138), and cannot be harmonized with decisions in the later cases of Walker v. Casgrain, 101 Mich. 604; Bowen v. Lansing, 129 Mich. 117 (57 L. R. A. 643, 95 Am. St. Rep. 427); City of Marquette v. Iron & Land Co., 132 Mich. 130; In re Stanton’s Estate, 142 Mich. 491.

We think the rule to be followed is stated in Bowen v. Lansing, supra, and we hold in accordance therewith, that the interest of the vendor in a land contract, upon his death, goes to his administrator as personalty, and does not descend as real estate to the heirs of the vendor, and, therefore, is not a subject of dower. In re Estate of Pulling, supra, so far as in conflict with this opinion, is overruled.

Defendant, having elected to take under the statute and not under the will, is entitled to her statutory distributive share of the personal estate, as widow, and this includes the right to so share in moneys received and to be received by the executor upon land contracts executed by the deceased. In so holding we have assumed the land contracts ■ are in the usual form, signed by both Mr. and Mrs. Baker after their marriage, grant purchasers possessory rights, carry the equitable title, obligate money payments by the vendees, and retain legal title in the vendor to secure such payments.

Plaintiffs are entitled to the specific performance granted in the circuit court and to that extent the decree is affirmed. The holding in the circuit relative to the right of defendant to a distributive share of moneys received by the executor on land contracts executed by Mr. Baker is reversed. This last mentioned subject being but incidental to the main issue, the plaintiffs will recover costs.

McDonald, C. J., and Clark, Steere, and Fellows, JJ., concurred with Wiest, J.