Page images
PDF
EPUB

utory prohibition." The consideration of such a contract generally is marriage, which in itself is sufficient to support the agreement.28 Such a contract must be followed by marriage, but even in the event of no marriage the contract has been held to be enforceable against the one responsible for its failure, the other not being at fault.29 And although the marriage may be invalid through a joint error of the parties to the contract, yet it is not open to attack by third parties.30 The consideration, however, may be something other than marriage,31 in which event the contract, upon the failure of the consideration, is not binding upon the party not at fault.32

to

408, 59 N. E. 1077; Johnston v.
Spicer, 107 N. Y. 185, 13 N. E. 753;
Green v. Benham, 57 App. Div.
(N. Y.) 9, 68 N. Y. Supp. 248.
See, generally, Contracts
Make Wills, ch. 8, §§ 135-158.
Antenuptial agreements call for
the highest degree of good faith,
and must be free from fraud, but
fraud is not presumed. In re
Whitmer's Estate, 224 Pa. St. 413,
73 Atl. 551.

As to insufficient evidence to show fraud, see Settles v. Settles, 130 Ky. 797, 114 S. W. 303.

It is duty of husband to support his wife, and provision in antenuptial agreement by which husband was to give his wife a certain amount for clothing and personal expenses, held void as against public policy.-Warner v. Warner, 235 Ill. 448, 85 N. E. 630. See, also, Tilton v. Tilton, 130 Ky. 281, 132 Am. St. Rep. 359, 113 S. W. 134.

27 Groesbeck v. Groesbeck, 78

Tex. 664, 14 S. W. 792, referring to the order of descent.

28 Hobson v. Trevor, 2 P. Wms. 191; Andrews v. Jones, 10 Ala. 400; Barlow's Admr. v. Comstock's Admr., 117 Ky. 573, 78 S. W. 475; Settles v. Settles, 130 Ky. 797, 114 S. W. 303; Gibson v. Bennett, 79 Me. 302, 9 Atl. 727; Wood, etc., Bank v. Read, 131 Mo. 553, 33 S. W. 176; Peck v. Vandemark, 99 N. Y. 29, 1 N. E. 41; Spurlock v. Brown, 91 Tenn. 241, 18 S. W. 868; Boggess v. Richards' Admr., 39 W. Va. 567, 45 Am. St. Rep. 938, 26 L. R. A. 537, 20 S. E. 599.

29 Conner v. Stanley, 65 Cal. 183, 3 Pac. 668.

30 Ogden v. McHugh, 167 Mass. 276, 57 Am. St. Rep. 456, 45 N. E. 731.

31 Naill v. Maurer, 25 Md. 532; Clark v. Clark, 28 Hun (N. Y.) 509; Peck v. Vandemark, 99 N. Y. 29, 1 N. E. 41.

32 Becker v. Becker, 241 Ill. 423, 26 L. R. A. (N. S.) 858, 89 N. E.

§ 626. The Same Subject: Statute of Frauds.

Many states have enacted statutes on the subject of antenuptial agreements, and the validity of such a contract is governed by the statute in force at the time it was made, a subsequent statute not impairing the rights and obligations of the parties.33 And generally such agreements are governed by the law in force at the place where the contract was made, and are not affected by a subsequent change of residence of the parties.34 In England, and in most of the United States, the various statutes of frauds require that contracts in consideration of marriage must be in writing, and signed by the parties thereto or by his or her agent thereunto duly authorized in writing.35 Where, however, the contract is based upon a sole consideration of value other than marriage, although the parties may contemplate marriage, the statute does not apply.36 Part performance likewise may take the contract out of the Statute of Frauds and make it enforceable at the instance of the one who has performed

737; Butman v. Porter, 100 Mass. 337; Bliss v. Sheldon, 7 Barb. (N. Y.) 152.

33 Smith v. Turpin, 109 Ala. 689, 19 So. 914; Desnoyer v. Jordan, 27 Minn. 295, 7 N. W. 140.

34 De Lane v. Moore, 14 How. (U. S.) 253, 14 L. Ed. 409; Smith v. Chapell, 31 Conn. 589; Besse v. Pellochoux, 73 Ill. 285, 24 Am. Rep. 242; DeBarante v. Gott, 6 Barb. (N. Y.) 492; Hicks v. Skinner, 71 N. C. 539, 17 Am. Rep. 16.

See, generally, as to conflict of laws, ch. 12, §§ 205-296.

35 Randall v. Morgan, 12 Ves. Jun. 67; In re Whitehead, 14 Q. B.

Div. 419; Lloyd v. Fulton, 91 U. S. 479, 23 L. Ed. 363; De Bardelaben v. Stoudenmire, 82 Ala. 574, 2 So. 488; Richardson v. Richardson, 148 Ill. 563, 26 L. R. A. 305, 36 N. E. 608; Manning v. Riley, 52 N. J. Eq. 39, 27 Atl. 810; Reade v. Livingston, 3 Johns. Ch. (N. Y.) 481, 8 Am. Dec. 520; Rowell v. Barber, 142 Wis. 304, 27 L. R. A. (N. S.) 1140; 125 N. W. 937.

36 Riley v. Riley, 25 Conn. 154; Rainbolt v. East, 56 Ind. 538, 26 Am. Rep. 40.

As to the effect of the Statute of Frauds upon contracts to make wills, see §§ 151-157.

his or her part;37 but marriage subsequent to the contract is not such part performance as will remove the bar of the statute.38

8627. The Same Subject: What Property Rights May Be Affected.

The property rights affected by an antenuptial agreement are to be determined by its provisions. Such contracts are liberally construed so as to give effect to the intention of the parties, and surrounding circumstances which aid in determining such intention may properly be considered. The agreement may be so worded that each of the contracting parties will be precluded from any right which either might otherwise have acquired in the property of the other by reason of the marriage,10 including property acquired subsequent to marriage,11 and

39

37 Ungley v. Ungley, 5 Ch. Div. 887; Hussey v. Castle, 41 Cal. 239; Bradley v. Saddler, 54 Ga. 681; Dygert V. Remerschneider, 39 Barb. (N. Y.) 417. See §§ 155, 156.

The fact that a husband furnished support and maintenance is not part performance, for such is his duty.-Rowell v. Barber, 142 Wis. 304, 27 L. R. A. (N. S.) 1140, 125 N. W. 937.

The requirement of the statute that contracts not to be performed within one year must be in writing does not affect such agreements, since they may be performed within that time. See § 151.

38 Caton v. Caton, L. R. 1 Ch. App. 137; Bradley v. Saddler, 54 Ga. 681; Richardson v. Richardson, 148 Ill. 563, 26 L. R. A. 305, 36 N. E. 608; Manning v. Riley, II Com. on Wills-6

52 N. J. Eq. 39, 27 Atl. 810; Brown v. Conger, 8 Hun (N. Y.) 625; Rowell v. Barber, 142 Wis. 304, 27 L. R. A. (N. S.) 1140, 125 N. W. 937.

39 Trevor v. Trevor, 1 P. Wms. 622; Ardis v. Printup, 39 Ga. 648; Kennedy v. Kennedy, 150 Ind. 636, 50 N. E. 756; Ditson v. Ditson, 85 Iowa 276, 52 N. W. 203; Gorin v. Gordon, 38 Miss. 205; Stevenson v. Renardet, 83 Miss. 392, 35 So. 576.

40 Ward v. Thompson, 6 Gill & J. (Md.) 349; Charles v. Charles, 8 Gratt. (Va.) 486, 56 Am. Dec. 155.

Homestead rights may be cut Weis v. Bach, 146 Iowa 320, 125 N. W. 211.

off.

41 Caldwell v. Fellows, L. R. 9 Eq. 410; In re Turcan, 40 Ch. Div. 5; Neves v. Scott, 9 How. (50

contingent and future interests.42 If so intended, the contract may cover property acquired after coverture has ceased; but in such cases the intent must be clearly expressed. By express terms it may bar the right of each contracting party to inherit from the other.45 There is a conflict of authority, however, as to dower rights. While unquestionably such rights may be released through an antenuptial agreement, yet some jurisdictions hold that marriage alone is not a sufficient consideration, and that

46

U. S.) 196, 13 L. Ed. 102; Borland v. Welch, 162 N. Y. 104, 56 N. E. 556.

42 Dickinson v. Dillwyn, L. R. 8 Eq. 546; In re Ware, 45 Ch. Div. 269; Holt v. Wilson, 75 Ala. 58; Wilson v. Holt, 83 Ala. 528, 3 Am. St. Rep. 768, 3 So. 321; Caulk v. Fox, 13 Fla. 148.

Antenuptial agreement whereby woman released all that she should "receive of the estate" of her husband, held not to preclude her from receiving the widow's allowance for support for one year. In re Miller's Estate, 143 Iowa 120, 121 N. W. 700.

But it was held that receiving proceeds of life insurance in full satisfaction of all claims against her husband's estate waived widow's allowance. - Bright v. Chapman, 105 Me. 62, 72 Atl. 750. See, also, In re Whitney's Estate, 171 Cal. 750, 154 Pac. 855.

43 Dickinson v. Dillwyn, L. R. 8 Eq. 546.

44 Reid v. Kenrich, 24 L. J. Ch. 503; In re Edwards, L. R. 9 Ch. App. 97; Borland v. Welch, 162 N. Y. 104, 56 N. E. 556.

45 Estate of Cutting, 174 Cal. 104, 161 Pac. 1137; McNutt v. McNutt, 116 Ind. 545, 2 L. R. A. 372, 19 N. E. 115; Eberhart v. Rath, 89 Kan. 329, Ann. Cas. 1915A, 268, 131 Pac. 604; Deller v. Deller, 141 Wis. 255, 25 L. R. A. (N. S.) 751, 124 N. W. 278.

Although a woman agreed to waive her rights as heir in consideration of her husband doing certain things, his failure to do so releases her, and she may claim as heir.-In re Warner's Estate, 158 Cal. 441, 111 Pac. 352.

46 Bryan v. Bryan, 62 Ark. 79, 34 S. W. 260; Andrews v. Andrews, 8 Conn. 79; Christy v. Marmon, 163 Ill. 225, 45 N. E. 150; Colbert v. Rings, 231 Ill. 404, 83 N. E. 274; Fisher v. Koontz, 110 Iowa 498, 80 N. W. 551; Nesmith v. Platt, 137 Iowa 292, 114 N. W. 1053; Forwood v. Forwood, 86 Ky. 114, 5 S. W. 361; Naill v. Maurer, 25 Md. 532; Tarbell v. Tarbell, 10 Allen (Mass.) 278; Rieger v. Schaible, 81 Neb. 33, 16 Ann. Cas. 700, 17 L. R. A. (N. S.) 866, 115 N. W. 560; Grogan v. Garrison, 27

the contract must be supported by some valuable consideration.17

§ 628. Postnuptial Agreements.

A husband and wife may settle property rights between themselves by an agreement made after marriage as well as before; but a postnuptial agreement must be based on a valid consideration.18 Marriage, being past, will not support the contract except it be the consummation of a valid and binding agreement entered into before marriage.1 The scope and effect of such postnuptial agreements, however, are the same as with those made before marriage.50 The husband and wife may release to the other all interest in his or her property, present or prospective;51 and this although they are living apart.52

Ohio St. 50; Findley's Exrs. v.
Findley, 11 Gratt. (Va.) 434.

129

See, also, Logan v. Whitley, App. Div. 666, 114 N. Y. Supp. 255, a case where the husband murdered his wife and then committed suicide. Contract held enforceable.

47 Estate of Pulling, 93 Mich. 274, 52 N. W. 1116; Graham v. Graham, 67 Hun (N. Y.) 329, 22 N. Y. Supp. 299; Hinkle v. Hinkle, 34 W. Va. 142, 11 S. E. 993.

48 Lanoy v. Athol, 2 Atk. 444, 448; Lloyd v. Fulton, 91 U. S. 479, 23 L. Ed. 263; Clow v. Brown, 37 Ind. App. 172, 72 N. E. 534; Egger v. Egger, 225 Mo. 116, 135 Am. St. Rep. 566, 123 S. W. 928.

The burden of proof is on the

[merged small][ocr errors]

49 Lockwood v. Nelson, 16 Ala. 294; Kinnard v. Daniel, 13 B. Mon. (52 Ky.) 496; Sanders v. Miller, 79 Ky. 517, 42 Am. Rep. 237.

50 See, ante, §§ 625-627.

As to rights of married women to will property, see §§ 301-309.

51 Perkins v. Sunset Tel. & T. Co., 155 Cal. 712, 103 Pac. 190.

52 Stokes v. Stokes, 240 Ill. 330, 88 N. E. 829.

« PreviousContinue »