Kingsley v. Noble

260 N.W. 918, 129 Neb. 130, 1935 Neb. LEXIS 163

• Court: Nebraska Supreme Court
• Decided: May 17, 1935
• Docket: No. 29170
• Status: Published

Opinions

Chase, District Judge.

This is a suit in partition which involves the validity of an antenuptial agreement entered into between the testator and his prospective wife. The trial court found the contract to be null and void; recognized the widow’s' election to take under the law; and found that she had an undivided interest in the estate of the deceased notwithstanding the contract; but charged her interest with the payment of $2,000, a sum which she had received for some land conveyed to her in consideration of the contract. From the finding that the contract is null and void, the plaintiffs and all of the defendants except the widow appeal, and from that part of the decree charging the widow’s estate with the payment of $2,000, the widow prosecutes a cross-appeal.

The facts are substantially as follows: Hermon H. Klone, the testator, and the defendant Mary E. Klone, were married on the 4th day of August, 1915. The testator at that time was 72 years of age, and his widow was then 56. This was the testator’s third marriage. He had a number of children by the first marriage and a number by the second marriage. His second wife died in 1915, some three months before this marriage. During the active years of his life he pursued the occupation of a farmer, and through industry and economy was able to accumulate quite a substantial estate, most of which consisted of real property. He had retired from the farm and had been living in the city of York as a retired farmer for some time before his third marriage, and continued to live in York until the time of his death. Mary E. Klone, before her marriage to the testator, had been previously married in the state of Illinois. Subsequently, with her husband and family, she moved to York county, where her husband, a tenant farmer, died about the year 1901, leaving her with some small children and practically no estate. After her husband’s death she moved with her family to Omaha, where by labor and saving she kept the family together, giving the children an opportunity for education until nearly all had reached maturity and some had married. Some of her children, in the meantime, had moved to York and Polk counties. Later she left Omaha and made her home with her children, spending most of the time with a daughter near Polk, Nebraska. Immediately previous to her marriage with the testator, she was staying with her married daughter, Mrs. Brott, in York, and while at the Brott home she met the testator, which acquaintance, within a very short time, culminated in marriage.

The testator appears to have been a farsighted, shrewd and successful business man, capable not only of producing wealth but safeguarding it against loss or dissipation. When his marriage with this defendant became imminent, presumably in order to preserve his estate intact for his children, on-his sole initiative, he procured a very skilful and prominent lawyer to prepare for him the antenuptial contract involved in this proceeding. He had informed, his lawyer of his matrimonial intentions and plan to retain his estate subject to his control and disposition. This all occurred some days previous to the date of the marriage. Pursuant to his desires the contract in question was drafted. It bears evidence of the skill of the draughtsman, being worded and phrased with the precision of a common-law indictment. It is as follows:

“These articles -of agreement, made in duplicate at York, Nebraska, this 4th day of August, 1915, by and between Hermon H. Klone, a widower at the age of 72 years and a resident of York county, Nebraska, party of the first part, and Mary E. Downey, a widow of the age of 56 years and a resident of Polk county, Nebraska, party of the second part, witnesseth:

“For, that, whereas a marriage is shortly intended to be had and solemnized between the said parties; and whereas the first party is the-owner of a quarter section of land in Washington county, Colorado, of the value of about $1,500, and also of about four hundred acres of. farm land in York county, Nebraska, of the value of about $60,000, and also of a homestead estate together with an undivided one-third interest in the fee of a certain dwelling-house and the land upon which it is situated in the city of York, Nebraska, of the value of about $3,000, and also grain, live stock and household and other chattel properties of the aggregate value of about $5,000:

“And, whereas, the first party accumulated said property in the past with the aid and assistance of his first wife and his children by her, and which the second party has had no part in accumulating, and which, together with the hereafter acquired property of the first party, it is hereby agreed and understood should and shall in justice and propriety and as a matter of antenuptial contract between the parties, with the exception only of said quarter section of land in Colorado, go to the other heirs of the first party, and to his devisees, grantees and vendees as he shall choose and elect wholly divested of any and all right, interest or estate of the second party therein by reason of her marriage with the first party, and which it is hereby understood and agreed by the parties hereto shall be and remain at all times hereafter in the exclusive, several and separate control and ownership of the first party in all respects the same as though he had remained and were an unmarried person:

“And, whereas, the children of both the parties are all of them adults and the parties do not wish to be under the necessity of seeking a home and companionship in the homes of any of their children, they, the parties hereto, contemplate said marriage for the sole purpose of establishing a home of their own wherein they may have the convenience, comfort and companionship of each other, but they do not, by said marriage, intend to endow or confer upon each other any of the usual interests, estates and marital rights in the property and estate of each other:

“Now, therefore, in consideration of the premises and of the conveyance by the first party to the second party of said lands in Colorado, to wit: The northwest quarter of section twenty-eight (28) in township three (3) north, range fifty (50) west of the sixth principal meridian in Washington county, Colorado, the receipt of which conveyance is hereby acknowledged by the second party, it is agreed that if the intended marriage shall take place and effect, that during the married life of the parties hereto, all the property of the first party, which he now has or hereafter may acquire, both real, personal and mixed and wheresoever situate, shall be held and owned by him separately and severally in all respects as though he were an unmarried man, and wholly divested of all rights, interests and estates of the second party by reason of her marriage with him, and that the second party shall and will permit and suffer the first party to give, grant and dispose of his said property which he now has or hereafter may acquire, or any part thereof, as he shall see fit in his lifetime, and to make such will, conveyance or other writing as aforesaid as he may desire, and thereby to give, convey, devise or limit his said property, or any part or parts thereof, to any person or persons, for any use, trust, intent or purpose whatsoever, and if necessary to satisfy the requirements or demands of the first party’s vendees and grantees, the second party will and shall, whenever requested or required by the first party, join with him in the execution, acknowledgment and delivery of all such deeds, conveyances, mortgages, bills of sale, and all other writings concerning said property, or any part or parts thereof, as the first party may require.

“It being the spirit and intent of the contract to give to the first party, after such marriage, full and complete control over his said property which he now has or hereafter may acquire, with power to sell and dispose of the same, or any part or parts thereof, without let or hindrance from the second party, and that upon the death of the first party, the second party shall not have, take or inherit any of the property of the deceased, or have any interest or right by way of dower, homestead or award, or by reason of the statutes of descent and distribution, or by reason of said marital relation, in or to the same or any part thereof, but the said property shall, in default of a will, go and descend to the other heirs of the first party the same as though the second party had never been his wife.

“And the parties sign and deliver this instrument simultaneously with the delivery by the first party to the second party of a due conveyance to her of said Colorado lands, in the presence of H. G. Hopkins and W. L. Kirkpatrick, and after this contract has been carefully read and explained to the parties, and each of them, by the said H. G. Hopkins who is not of counsel for either of the parties nor interested in this contract, but who has read and explained it and signed it as a witness at the request of the parties.

“In the presence of

“W. L. Kirkpatrick Hermon H. Klone

“Harry G. Hopkins Mary E. Downey.

“State of Nebraska, York county — ss:

“On this 4th day of August, 1915, before me, Harry G. Hopkins, the duly elected, qualified and acting county judge in and for said county, came Hermon H. Klone and Mary E. Downey, to me personally known to be the identical persons described in and whose names are affixed to the foregoing instrument as the makers thereof, and they severally acknowledged said instrument to be their voluntary act and deed and the voluntary act and deed of each of them.

“Witness my hand and the seal of the county court of York county, Nebraska.

“Harry G. Hopkins, County Judge.

“(Seal County Court of York county, Nebraska.)”

On the day before the marriage, Mrs. Klone was staying with her daughter at Polk, Nebraska. The testator on that day went from York to Polk, where he stayed overnight, and while there it was arranged between the parties that they should be married on the following day at Seward, Nebraska. They left Polk on an early train, and while on the train between Polk and York the testator, for the first time, informed his prospective wife that he desired to stop in York to have some papers executed, without informing her of the purport thereof. The testator was the owner of a quarter section of land in Colorado, and he told her, while on the train, that he wanted to deed this land to her, but, according to her testimony, said nothing as to any other instruments that he proposed to have executed. They arrived at the lawyer’s office in York shortly after noon on the wedding day. While there the antenuptial contract was produced, hurriedly read to the widow and executed. Only about fifteen minutes were consumed in the whole matter. The contract was prepared and ready for execution some time before the wife knew anything about its existence. She had no opportunity of employing or advising with counsel as to her rights, and had little or no knowledge of a wife’s interest under the law in the property of the husband.

The parties lived together as husband and wife from the marriage until the husband’s death; which occurred in 1933. The husband executed a will, which was duly probated, but the widow filed her election to take under the statute. In the will he made a bequest to her of $1,500.

The lawyer who drafted the contract testified that it was read to the parties by the county judge before signature. The county judge testified that he had no recollection whatever of reading the contract to the parties. The widow testified in one place that she thought she knew what interest she would take under the law in case of marriage, but was not informed or told by anybody that day what her interest would be. Later she testified that she knew nothing of what interest in the husband’s estate the law gives the wife in case of his death, and had no information upon that subject until after the contract was signed.

Antenuptial contracts have been before this court for consideration on a number of occasions. The attitude of the courts, not only in this state, but elsewhere, seems to be that no definite rule can be adopted applicable to all such agreements; that each contract must stand or fall according to the particular facts and circumstances surrounding it. However, the courts hold that,certain things are essential to support the validity of these contracts: First, they must be fairly entered into; second, the terms must be just and reasonable; third, the property provided for the prospective spouse must bear a just and reasonable proportion to the estate of the prospective husband; fourth, the husband must make a full disclosure as to his property. In re Estate of Enyart, 100 Neb. 337; In re Estate of Maag, 119 Neb. 237. It is lawful under our statute for parties, before marriage, to enter into a contract to bar the respective rights in the property of each other. Section 30-106, Comp. St. 1929, provides:

“A man or woman may also bar his or her right to inherit part or all of the lands of his or her husband or wife by a contract made in lieu thereof before marriage. Said contract shall be in writing signed by both of the parties to such marriage and acknowledged in the manner required by law for the conveyance of real estate, or executed in conformity with the laws of the place where made.”

Equity, in construing these contracts, looks beyond the mere terms thereof and takes into consideration the atmosphere and surroundings under which the contract was entered into. No doubt the reason equity regards the rights of the parties so jealously under the circumstances is because of the peculiar relationship that exists between them. In the whole realm of human relations we are aware of no incident where more trust and confidence exists than when two parties agree to enter into the matrimonial state. Especially does a woman place all her faith in the honor and affections of the man in whose keeping she is about to deposit her future happiness. From him she ordinarily keeps no secrets, and she believes he withholds none from her. While under the influence of such ecstatic anticipation, she is quite often deprived of the normal ability to provide for her future security, or to insist upon the preservation of her full legal rights. The law views the institution of marriage as a thing too sacred to be regarded as an article of commerce upon a bargain counter or the subject of barter and sale, in which parties deal at arm’s length. The legal effect of contracts of this character cannot be ascertained by fixed and definite rules of interpretation, or their scope determined by any common method of measurement.

“Owing, moreover, to the confidential relation which subsists between the parties, an antenuptial contract which appears to have been unfairly procured, will be set aside; and one whose terms are grossly inequitable, especially if involving unreasonable sacrifice of the wife’s rights, can only be sustained upon very clear proof of concurrent intent.” Schouler, Husband and Wife, sec. 360.

In antenuptial contracts a provision for the benefit of the wife “should be characterized by the utmost good faith, free from fraud on the part of the husband, and the provision for the wife should be reasonably proportionate to the means of the husband. If these essentials are lacking, the settlement may be set aside in equity. The parties to an antenuptial contract do not deal at arm’s length, but they occupy a confidential relation to each other, and while they may lawfully contract with each other, when there is full knowledge of all that may materially affect the contract, yet 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.” Tiffany, Persons and Domestic Relations, Hornbook Series, sec. 86.

The rule applicable to the construction of contracts of this character makes it incumbent upon the husband or his representatives to show that an antenuptial agreement, apparently unjust to the wife, was fairly procured. In re Estate of Enyart, supra; In re Estate of Maag, supra. By the appraisement the testator placed upon his property in the contract, his estate was then of the value of $69,500, of which, in consideration of the wife entering into the same, he gave her the Colorado land valued at $1,500. She was, by a designing husband, hurried into this arrangement, having little or no knowledge of what her rights would be under the law in case of marriage. The provision made for the wife, according to the valuations put in the contract, is slightly more than one forty-sixth of his estate. This amount, as we view it, was so grossly disproportionate to the value of his entire estate as to make the contract unjust.

The representatives of the testator having failed to assume the burden of establishing that the contract was fairly procured, the same is therefore ineffectual to bar any rights of inheritance on the part of the wife. In so far as the validity of the contract is concerned, the case is affirmed.

As to the matters presented by the cross-appeal, it appears that the widow sold the Colorado land for $2,200, part of which was used during the marriage relation by herself and husband to satisfy obligations that the law would cast upon the husband, thus relieving him from the payment thereof. It appears further that there remains as a balance from the original consideration of the Colorado land to the credit of the widow the sum of $1,160. Since the wife challenges the validity of the contract under which she originally acquired the $1,160, equity will not permit her to retain ány moneys derived therefrom. In equity a party will not be permitted to affirm a contract as to a part beneficial to such person and disaffirm as to a part detrimental. Her estate, therefore, should be charged with the payment of $1,160. With this modification of the case presented by the cross-appeal, the same is

Affirmed as modified.