Fischer v. Dolwig

166 N.W. 793, 39 N.D. 161, 1918 N.D. LEXIS 7

• Court: North Dakota Supreme Court
• Decided: February 9, 1918
• Status: Published

Opinions

Bruce, Ch. J.

This is an action to set aside a decree of the county court of Stark county, awarding to the defendants the real and personal property of one Jacob Dolwig, deceased, and asking that the defendants be compelled to account for the profits of the real estate of the said Jacob Dolwig since his death, and for all notes and accounts belonging to said estate; and that the plaintiff be decreed one third of the said notes and accounts as well as an undivided one-third interest as the wife of the said Jacob Dolwig in all of the real estate possessed by him at the time of his death; and that before any division of the personal property be made there be set apart for the plaintiff $1,500 as her exemption as provided for by § 8725 of the Compiled Laws of 1913.

The defense was an alleged marriage settlement by which the said plaintiff, Theresia Dolwig Fischer, waived all right to the estate for the sum of 200 Austrian gulden. A final decree of distribution by the county court in October, 1911, to the effect that “Theresia Dolwig received her share of the estate of the said deceased during her lifetime and by an instrument in writing filed in this court and in this proceeding, and waived all right to any share in the estate of the said Jacob Dolwig, deceased,” and that the plaintiff had notice and full knowledge of the proceedings in the county court, waived all service of notice, and impliedly, if not actually, consented to such proceedings and to such judgment.

The plaintiff, on the other hand, alleges that her signature to the waiver of all citation in the said administration proceedings was obtained by fraud, but on this point the trial court found that she signed the waiver; that she knew what she was doing; that no fraud was practised upon her; that she executed a marriage settlement, which waived her rights in the estate, and received $200 thereunder and kept it; that she employed one McBride to represent her in the probate proceedings; that although the judgment was not entered until the 13th day of October, 1911, the plaintiff and her attorney as early as March, 1911, knew that said waiver and said marriage settlement were on file in the county court and were being relied upon by the county court and by the defendants in the suit; that the plaintiff and her attorney knew within one week after final decree was entered that it was entered; that the plaintiff advised her attorney that she would put no more money into the case; that plaintiff made no application to the county court for exemption, real or personal, and took no steps in said court to set aside the said decree or to appeal therefrom.

The defendant also contends that even if it be conceded that the written marriage settlement was void as having been made after the marriage, and the oral settlement was void on account of not having been in writing, and even though the waiver of citation was obtained by fraud, and the judgment of the county court was not binding upon the plaintiff, still there is no ground for equitable interference, since after the marriage the plaintiff expressly recognized the contract of settlement by joining in a deed of her husband’s land to the defendant John, and talcing from him an agreement for the support of the couple during their joint life, and that in this way all of the real estate of the deceased had been deeded away. As far, too, as the personal property is concerned, that is to say, the $1,700 in notes, he contends that as a condition of such support he had also agreed that the daughters should each receive $500, John to make up any deficiency; that the money in the estate was not sufficient for this purpose, and that John' had paid the deficiency and made good the gifts, and that she should not be allowed at this time to withdraw from an executed agreement. This contention we hold to be sound.

Although there is some dispute in the testimony, the trial court found, and we believe correctly, the following facts:

In 1898 Jacob Dolwig, his wife Magdalena, his son John, and three daughters, came from Hungary to Stark county, North Dakota. Jacob had about $1,100 in money and no other property. John was then nineteen years old. The Dolwig family located on a tract of 160 acres of land in section 4, township 138, range 95, Stark county, as a homestead and made five-year proof thereop. In 1902 Jacob’s wife died. John and the girls worked at home for the father and also worked out for hire and turned their money in to the father. In the spring of 1904 John was twenty-six years of age. Jacob was then worth in money, land, and property $2,500. This made up of Jacob’s $1,100 and the work and earnings of John and the three girls. In the fall of 1903, at the request and direction of Jacob Dolwig, one Anton Duck-horn, Jacob’s father-in-law, and the husband of the plaintiff’s cousin, wrote to the plaintiff, a widow in Hungary, and told her that Jacob was a widower fifty years old and would give plaintiff a ticket to America and 200 gulden, about $80, if plaintiff would come to America and marry Jacob, plaintiff to get nothing more in case Jacob died before the plaintiff. On receipt of this letter the plaintiff wrote to Duckhorn, whom she had known in Hungary accepting Jacob’s proposition, and Jacob sent the transportation, and plaintiff came to Dickinson in March, 1904, and married Jacob on April 18, 1904. Before the marriage, plaintiff visited with the Massereck and Wilier families in Dickinson, and told them that she was only to get $200 from the Dolwig estate. On the day after the marriage, that is to say, on April 19, 1904-, Jacob and the plaintiff entered into an agreement in writing whereby and whereunder they agreed to convey to the son John the north half of section 3, township 138, range 95, and the southwest quarter of section 3, township 139, range 95, and sold to the said John four horses, a cow, two calves, and some farm machinery, and John, on the other hand, undertook to pay Jacob $400 in cash; to furnish during the lifetime of Jacob, flour, sugar, coal, etc., to the said Jacob and his wife; to furnish them with a home; to raise for them each year during Jacob’s life 10 acres of wheat; keep for them during Jacob’s life four head of cattle and one horse; and to furnish 1 acre of land to Jacob and his wife for garden purposes. John paid the $400 and immediately went into possession of the three quarter sections of land, farmed them and paid the taxes thereon. By this agreement Jacob turned over to John practically all of his property, having left a horse, four cows, and about $100. At the time of making this agreement it was also orally agreed between John, Jacob, and the three daughters, that the three daughters should have $500 apiece upon Jacob’s death; that Jacob would pay what he could to the girls and that John would make up any deficiency. On May 28, 1904, and five or six weeks after her marriage and after Jacob had turned his property over to his son, the plaintiff, for the purpose of furnishing evidence of her prior agreement with Jacob, signed and delivered the following marriage settlement, or instrument in writing: “For and in consideration of $200, $100 receipt of which is hereby acknowledged and $100 as witnessed by note of even date due November 1, 1904, I hereby waive all claim in and to the estate of John Dolwig.” To this instrument the plaintiff, Theresia Dolwig, fixed her mark. The instrument, however, was witnessed by one J. M. Hughes and F. Van der Las, who after appears to have been the county judge. The said J. Van der Las testifies that he explained the writing to the plaintiff in German; that she expressed her satisfaction with the contract, and said that it was in accordance with an oral agreement made prior to the marriage. Later and on July 18, 1908, and in accordance with the agreement of April 19, 1904, the northwest quarter of section 4 was conveyed to John, and still later and on the 29th day of April, 1909, and at the request of John, the northeast quarter was conveyed to one Frank T. Lefor, the plaintiff joining in both of the deeds with her husband, Jacob. By agreement between Jacob and John, John then deeded tbe .southwest quarter of section 33 to Jacob to stand as security for the performance on his part of the agreement of support of April 19, 1904, Jacob, however, never took possession of the southwest quarter of section 33, paid anything for it, paid any taxes thereon, or exercised any .jurisdiction over it. The southeast quarter of section 3 was not paid for when John took it. He made payments to the amount of $260, the purchase price being $380. He put in improvements on the north half of section 4 to the value of $1,000. In 1909 John moved to Gladstone, having traded the north half of section 4 in part payment for a store. A few days later Jacob and the plaintiff came to live with John. They lived in a part of the house and did their own housekeeping. John furnished them with the necessities of life in accordance with his agreement of April 19, 1904. On December 19, 1909, Jacob died. On December 29, 1910, John Dolwig filed a petition for the administration of Jacob’s estate and was appointed administrator. On December 1, 1911, the plaintiff signed the waiver of citation in said matter. About this time the plaintiff left John’s house and went to live with her son by a former marriage, Franz Boor, who lived about 8 miles from Gladstone .and the same distance from Dickinson. She testified that she left because she was getting nothing from her husband’s estate. When she left she took her bed and other personal belongings and a cow which John gave her. She could not read or speak English, though she could .speak, German. She was fifty-six or fifty-seven years old when her husband died. She testifies that J ohn told her, when she signed the waiver ■of citation, that it was for the purpose of having J ohn appointed foreman, and that she repeatedly asked for a share in the estate. John testifies that he explained what was in the waiver; that he misrepresented nothing and held nothing from the plaintiff. There were many people in Gladstone who could read English and speak German. Plaintiff made no attempt to have the waiver read or explained to her by anyone except John. John signed the petition on January 12, 1911, and the court issued a citation naming February 7th as the return day. On February 7th the plaintiff and her son appeared in the county court in Dickinson, and the plaintiff requested the county court to call one Murtha, who was the attorney for the petitioner, and in response the said Murtha came to the county court. At the request of John, Mr. Murtha advised the plaintiff through her son that it would take about six months to close up the estate; that plaintiff had signed the marriage settlement, and waived all rights to the estate; that the plaintiff had better hire a lawyer. On February I, 1911, John was appointed administrator. ■On February 2'fth ho filed an inventory. On February 25, 1911, the plaintiff employed attorney, M. L. McBride, of Dickinson to represent ler in said court, and paid him small sums on February 25th, March 8th, and March 16th, in all $25. In February and March, 1911, one ■George Brown, a clerk in Mr. McBride’s office, and who can speak and read German, twice went with the plaintiff, at Mr. McBride’s request, to the chambers of the county judge in relation to the estate. There the county judge showed to Brown the marriage settlement, and Brown read the same to the plaintiff and explained it to her in German and ■did the same with the waiver of citation. This is not denied. At about the same time Mr. Murtha showed the marriage settlement to Mr. McBride and advised Mr. McBride that the other heirs claimed that plaintiff was entitled to nothing from the estate. At McBride’s request Murtha had John orally notify the plaintiff of the final settlement. On the day of the final settlement, that is, on October 13, 1911, the plaintiff and her son, in response to John’s notice, came to Dickinson and were advised by Murtha that the final decree was to be entered that day, and that plaintiff was to get nothing. On the day of the final settlement the county judge tried to get McBride over the telephone, but could not reach him. About a week after the final settlement the plaintiff and her son John came to McBride’s office and McBride’s clerk, Brown, at Mr. McBride’s request, went with plaintiff and John to the county court and found that a final decree had been entered. They then went back to Mr. McBride’s office, and plaintiff was advised that a final decree had been entered; that she had received nothing thereunder, and also advised of her right to appeal. Mr. McBride also told her that appeal would cost $50. The plaintiff then said that she would not spend any more money, and Mr. McBride was not directed to appeal or take any further steps in the action.

It also appears that John paid for the expenses of Jacob’s last sickness and burial, $180, and for the cost of administration, $120, making a total expenditure as administrator of $300. He charged nothing for his personal service, he got nothing from the estate, except the south half of section 33, which he already owned. The two lots in Dickinson-were given to the daughters. John also added $300 to the $1,700 in notes, so that each of the four girls received $500 apiece in accordance-with the oral agreement of April 19, 1904. He offered to do the same thing for the plaintiff, so that she would also receive $500. It was also-found by the trial court, and we believe correctly, that although the-south half of section 33 was inventoried as part of the estate, this was merely done as a matter of convenience and to clear the record title, as-it already belonged to John under the contract of April 19, 1904, by which he had agreed to support the said Jacob and the plaintiff during the lifetime of the former, and which contract he had fulfilled.

As far as the oral antenuptial agreement was concerned, we are satisfied that it was as testified to by the witness, John Van der Las, who-said, “Mr. Dolwig, when the three of us were together, told me that he had made an agreement with Theresia Dolwig, that if she would come to America he would marry her, advancing her the transportation from Europe here, and give her a hundred dollars after she arrived here, with the understanding that she was to relinquish all her interest and right to-any property that he might leave in ease he died first, because his first wife and his children, now all grown, had earned and accumulated this properly.

There can be no doubt, too, that a postnuptial agreement was entered into in writing in conformity with this prior agreement.

We are satisfied that the so-called marriage settlement was invalid. It was not reduced to writing until after the marriage. Section 5888 of the Compiled Laws of 1913 requires “au agreement made upon consideration of marriage other than a mutual promise to marry” to be in writing. The antenuptial agreement was therefore invalid, and, to quote from the supreme court of Wisconsin, in construing a statute similar to our own, “we have been cited to no authority and have found none under a statute like ours which holds that an oral antenuptial agreement void under the Statute of Frauds can be validated by a postnuptial contract. Such a doctrine would in effect work a judicial repeal of the-statute.” See Rowell v. Barber, 142 Wis. 304, 27 L.R.A.(N.S.) 1140, 125 N. W. 937; McAnnulty v. McAnnulty, 120 Ill. 26, 60 Am. Rep. 552, 11 N, E. 397; Richardson v. Richardson, 148 Ill. 563, 26 L.R.A. 305. 36 N. E. 608.

In spite of this finding and conclusion, however, we are satisfied that 'the plaintiff is not entitled to any relief in this action, and that the judgment of the district court should be affirmed.

We are satisfied that there was a waiver of citation by reason of the written waiver of December 31, 1910. It is true that the petition for appointment of the administrator was not filed until January 12, 1911, and the probate court did not obtain jurisdiction of the case until that time. Even, however, if, as contended by counsel, § 8565 of the Compiled Laws of 1913, which provides that “a party who appears as herein-before prescribed, may waive in writing the service of any further citation, notice or papers in the proceeding and thereafter no such citation, notice or paper need be served on him,” merely applies to cases where an appearance has already been made, we can see no reason why a party may not in advance, and prior to the filing of a petition for an administration, consent to the same and in advance waive all notice and citation as was done in the case at bar. The petition in the ease at bar, for the document was a petition as well as a waiver, signed, by the plaintiff and was as follows: •

The undersigned, Theresia Dolwig, Elizabeth Wilier, Susanna Kunz, Katherina Duckhorn, and Magdalena Schiller, respondents, all being-over twenty-one years, hereby consent that the petition of John Dolwig for the appointment of administrator, and for the administration of the above estate, be granted. And we and each of us hereby waive the service of all citations and notice which otherwise would be required to be given in the course of the administration of said estate. And we hereby consent that said estate be administered and final decree of distribution entered therein without further notice or citation to us or either of us.

Dated December 31, a. d. 1910.

Section 8565 of the Compiled Laws of 1913 provides: “An appearance in any proceeding is effected by giving notice of the appearance in open court either orally or in writing or by pleading or making application therein to the court for an order or direction of any kind. A party who appears, or is held to appear, as is hereinbefore prescribed, is deemed to have knowledge of each postponement and all other acts done in the course of the proceeding from the commencement until the final disposition thereof, without further notice, except such as is imparted, by the records of the court. A party who appears as hereinbefore prescribed, may. waive in writing the service of any further citation, notice- or papers in the proceedings and thereafter no such citation, notice or papers need be served on him.”

In the petition which is before us the plaintiff, Theresia Dolwig, consented to the appointment of the administrator, and the filing of this, petition amounted to an appearance. In the same paper she waived in writing the service of any further citation, and she was entitled to none. Not only is this true, but it is well established that one who has actual notice and seasonably appears cannot complain that a citation was insufficient or that no citation was given. See 18 Cyc. 121. The record in the case which is before us shows conclusively that, not merely did the plaintiff sign the petition, consent to the appointment of the administrator, and waive citation, but that she and her attorney were fully conversant of what was going on, and it is quite evident that both acted on the assumption that the agreement of conveyance and support, even if not the marriage settlement, were binding, and that they had no interest in the proceedings.

We can find nothing in the record which justifies us in setting aside the finding of the trial court that no fraud was practised upon the plaintiff either in signing the marriage settlement or the waiver of citation. It is clear, also, to us that she had abundant opportunity to withdraw such waiver during the'probate proceedings, was at all times represented by counsel, and could have appealed from the judgment of the probate court if she had so desired. Surely a person who is entitled to exemptions may decline to claim them -and may be estopped from afterwards, asserting the right, if she has stood by with knowledge of the fact that they were not being allowed, and has taken no step to intervene in the matter, to have the judgment modified, or to appeal therefrom. There must somewhere be an end to litigation, and judgments which are rendered with jurisdiction of the person must have some force and effect, otherwise there would be ceaseless litigation and no security to titles or to property.

The final decree of a county court is of equal rank with judgments entered in other courts of record, and the same presumptions exist in its favor. Fischer v. Dolwig, 29 N. D. 564, 151 N. W. 431. While § 8809 of the Compiled Laws of 1913 authorizes an action in the district court to set aside a final decree of the county court for fraud or other equitable ground, it manifestly does not authorize such action to review errors properly reviewable on appeal from the final decree.

In an equitable' action to set.aside the decree, the plaintiff has the burden of proof, and must overcome the presumptions in favor of the decree by a fair preponderance of all the evidence.

The trial court found that plaintiff had failed to sustain this burden, and this finding is clearly correct.

As we have before stated, we find no proof of fraud in the matter. A Hungarian witness testified that antenuptial agreements, such as the plaintiff attempted to enter into, are by no means uncommon in his country. When the deceased came to America he had only $1,000. When he married the plaintiff he was only worth about $2,500. It is shown conclusively that what property he had was accumulated largely through the labor of his children, and it is not unreasonable that he should attempt to protect them in the possession of that which they had earned. Nor, indeed, was the plaintiff rendered destitute thereby. Not only had she a son by her first marriage living in America, who appears to be a moving factor in this suit, but since the death of the deceased she again married.

The judgment of the District Court is affirmed.