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utory prohibition.27 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, in which event the contract, upon the failure of the consideration, is not binding upon the party not at fault. 32 408, 59 N. E. 1077; Johnston V, Tex. 664, 14 S. W. 792, referring Spicer, 107 N. Y. 185, 13 N. E. 753; to the order of descent. Green v. Benham, 57 App. Div. 28 Hobson v. Trevor, 2 P. Wms. (N. Y.) 9, 68 N. Y. Supp. 248.

191; Andrews V. Jones, 10 Ala. See, generally, Contracts to 400; Barlow's Admr. v. Comstock's Make Wills, ch. 8, $$ 135-158. Admr., 117 Ky, 573, 78 S. W. 475;

Antenuptial agreements call for Settles v. Settles, 130 Ky. 797, the highest degree of good faith, 114 S. W. 303; Gibson v. Bennett, and must be free from fraud, but 79 Me. 302, 9 Atl. 727; Wood, etc., fraud is not presumed. - In re Bank v. Read, 131 Mo. 553, 33 Whitmer's Estate, 224 Pa. St. 413, S. W. 176; Peck v. Vandemark, 99 73 Atl. 551.

N. Y. 29, 1 N. E. 41; Spurlock v. As to insufficient evidence to Brown, 91 Tenn. 241, 18 S. W. 868; show fraud, see Settles v. Settles, Boggess v. Richards' Admr., 39 130 Ky. 797, 114 S. W. 303.

W. Va. 567, 45 Am. St. Rep. 938, It is duty of husband to support 26 L. R. A. 537, 20 S. E. 599. his wife, and provision in ante 29 Conner v. Stanley, 65 Cal. 183, nuptial agreement by which hus- 3 Pac. 668. band was to give his wife a

30 Ogden v. McHugh, 167 Mass. certain amount for clothing and 276, 57 Am. St. Rep. 456, 45 N. E. personal expenses, held void as 731. against public policy.-Warner v.

31 Naill v. Maurer, 25 Md. 532; Warner, 235 Ill. 448, 85 N. E. 630.

Clark v. Clark, 28 Hun (N. Y.) See, also, Tilton v. Tilton, 130 Ky.

509; Peck v. Vandemark, 99 N. Y. 281, 132 Am. St. Rep. 359, 113 29, 1 N. E. 41. S. W. 134.

32 Becker v. Becker, 241 Ill. 423, 27 Groesbeck V. Groesbeck, 78 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.38 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. Div. 419; Lloyd v. Fulton, 91 U. S. 337; Bliss v. Sheldon, 7 Barb. 479, 23 L. Ed. 363; De Bardelaben (N. Y.) 152.

v. Stoudenmire, 82 Ala. 574, 2 So. 33 Smith v. Turpin, 109 Ala. 689, 488; Richardson v. Richardson, 19 So. 914; Desnoyer v. Jordan, 148° Ill. 563, 26 L. R. A. 305, 36 27 Minn. 295, 7 N. W. 140.

N. E. 608; Manning v. Riley, 52 34 De Lane v. Moore, 14 How. N. J. Eg. 39, 27 Atl. 810; Reade (U. S.) 253, 14 L. Ed. 409; Smith v. Livingston, 3 Johns. Ch. (N. Y.) v. Chapell, 31 Conn. 589; Besse v. 481, 8 Am. Dec. 520; Rowell v. Pellochoux, 73 Ill. 285, 24 Am. Rep. Barber, 142 Wis. 304, 27 L. R. A. 242; DeBarante V. Gott, 6 Barb. (N. S.) 1140; 125 N. W. 937. (N. Y.) 492; Hicks v. Skinner, 71 36 Riley v. Riley, 25 Conn. 154; N. C. 539, 17 Am. Rep. 16.

Rainbolt v. East, 56 Ind. 538, 26 See, generally, as to conflict of Am. Rep. 40. laws, ch, 12, 8$ 205-296.

As to the effect of the Statute 35 Randall v. Morgan, 12 Ves. of Frauds upon contracts to make Jun. 67; In re Whitehead, 14 Q. B. 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

V.

§ 627. 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.39 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, 40 including property acquired subsequent to marriage, 41 and

37 Ungley v. Ungley, 5 Ch. Div. 52 N. J. Eq. 39, 27 Atl. 810; Brown 887; Hussey v. Castle, 41 Cal. 239; V. Conger, 8 Hun (N. Y.) 625; Bradley V. Saddler, 54 Ga. 681; Rowell v. Barber, 142 Wis. 304, Dygert Remerschneider, 39 27 L, R. A. (N. S.) 1140, 125 N. W. Barb. (N. Y.) 417. See $$ 155, 156. 937.

The fact that a husband fur. 39 Trevor v. Trevor, 1 P. Wms. nished support and maintenance is 622; Ardis v. Printup, 39 Ga, 648; not part performance, for such is Kennedy v. Kennedy, 150 Ind. 636, his duty.-Rowell v. Barber, 142 50 N. E, 756; Ditson V. Ditson, Wis, 304, 27 L. R. A. (N. S.) 1140, 85 Iowa 276, 52 N. W. 203; Gorin 125 N. W. 937.

v. Gordon, 38 Miss. 205; StevenThe requirement of the statute son v. Renardet, 83 Miss. 392, 35 that contracts not to be performed So. 576. within one year must be in writ- 40 Ward v. Thompson, 6 Gill & ing does not affect such agree- J. (Md.) 349; Charles v. Charles, ments, since they may be per- 8 Gratt. (Va.) 486, 56 Am. Dec. formed within that time. See 155. $ 151.

Homestead rights may be cut 38 Caton v. Caton, L R. 1 Ch. off.-Weis v. Bach, 146 Iowa 320, App. 137; Bradley v. Saddler, 54 125 N. W. 211. Ga. 681; Richardson V. Richard- 41 Caldwell v. Fellows, L. R. 9 son, 148 Ill. 563, 26 L. R. A. 305, Eq. 410; In re Turcan, 40 Ch. Div. 36 N. E. 608; Manning v. Riley, 5; Neves v. Scott, 9 How. (50 II Com. on Wills-6

contingent and future interests.42 If so intended, the contract may cover property acquired after coverture has ceased ;43 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.48 There is a conflict of authority, however, as to dower rights. While unquestionably such rights may be released through an antenuptial agreement,46 yet some jurisdictions hold that marriage alone is not a sufficient consideration, and that U. S.) 196, 13 L. Ed. 102; Borland 45 Estate of Cutting, 174 Cal. v. Welch, 162 N. Y. 104, 56 N. E. 104, 161 Pac. 1137; McNutt v. MC556.

Nutt, 116 Ind. 545, 2 L. R. A, 372, 42 Dickinson v. Dillwyn, L, R. 8 19 N. E. 115; Eberhart v. Rath, Eq. 546; In re Ware, 45 Ch. Div. 89 Kan. 329, Ann, Cas. 1915A, 268, 269; Holt v. Wilson, 75 Ala. 58; 131 Pac. 604; Deller v. Deller, 141 Wilson v. Holt, 83 Ala. 528, 3 Am. Wis. 255, 25 L. R. A. (N. S.) 751, St. Rep. 768, 3 So. 321; Caulk v. 124 N. W. 278. Fox, 13 Fla. 148.

Although a woman agreed to Antenuptial agreement whereby waive her rights as heir in con.

released all that she sideration of her husband doing should "receive of the estate" of certain things, his failure to do so her husband, held not to preclude releases her, and she may claim her from receiving the widow's as heir.-In re Warner's Estate, allowance for support for 158 Cal. 441, 111 Pac. 352. year.-In re Miller's Estate, 143

46 Bryan v. Bryan, 62 Ark. 79, Iowa 120, 121 N. W. 700.

34 S. W. 260; Andrews V. AnBut it was held that receiving

drews, 8 Conn. 79; Christy v. Mar. proceeds of life insurance in full

mon, 163 Ill. 225, 45 N. E. 150; satisfaction of all claims against

Colbert v. Rings, 231 Ill. 404, 83 her husband's estate waived

N. E. 274; Fisher v. Koontz, 110 widow's allowance. Bright v.

Iowa 498, 80 N. W. 551; Nesmith Chapman, 105 Me. 62, 72 Atl. 750. See, also, In re Whitney's Estate,

v. Platt, 137 Iowa 292, 114 N. W. 171 Cal. 750, 154 Pac. 855.

1053; Forwood v. Forwood, 86 Ky. 43 Dickinson v. Dillwyn, L. R.

114, 5 S. W. 361; Naill v. Maurer, 8 Eq. 546.

25 Md. 532; Tarbell V. Tarbell, 44 Reid v. Kenrich, 24 L, J. Ch. 10 Allen (Mass.) 278; Rieger V. 503; In re Edwards, L. R. 9 Ch. Schaible, 81 Neb. 33, 16 Ann, Caş. App. 97; Borland v. Welch, 162 700, 17 L. R. A. (N. S.) 866, 115 N. Y. 104, 56 N. E. 556.

N. W. 560; Grogan v. Garrison, 27

woman

one

the contract must be supported by some valuable consideration.*7

$ 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.48 Marriage, being past, will not support the contract except it be the consummation of a valid and binding agreement entered into before marriage. 19 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

а

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

See, also, Logan v. Whitley, 129 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 y. 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

party seeking to uphold the agreement. Seventy-five dollars per month as support for wife after husband's death, his estate being worth over $300,000.00, was not sufficient consideration for waiver of all rights. — Egger v. Egger, 225 Mo. 116, 135 Am. St. Rep. 566, 123 S. W. 928.

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.

81 Perkins V. Sunset Tel. & T. Co., 155 Cal. 712, 103 Pac. 190.

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

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