Hunt's Appeal

Mr. Justice Trunkey delivered the opinion of the court October 2d 1882. This controversy is between the widow of Henry Venus and bis children. She claims, out of the assets for distribution; $300 under the exemption law, and one-third of the balance under the intestate laws; they claim the whole, alleging she waived her right to the exemption, and that she made an ante-nuptial contract with Venus, that the survivor should take no part of the other’s estate. The auditor and court ruled that the parties claim by devolution, and, therefore, are competent witnesses under the act of April 15th 1869. It is true that the widow claims one-third by devolution, and so do the children their distributive shares; but that this is not the whole ease is manifest from the objection made by the children to the competency of the widow as a witness, namely, she was seeking to charge the estate and occupied the position of a creditor, seeking to set aside a contract of the intestate made in his lifetime. The basis of the objection was the real or pretended contract. That aside, nothing was in the way of [596] the widow taking the third part by operation of law. That established, the children took that third by virtue of the contract. It is admitted that if she were a creditor of the estate, claiming under a contract, that she could not testify in her own behalf, nor could they against her. By the settled construction of the proviso to the first section of the act of 1869, the act does not apply to any civil proceeding when such contract is sought to be enforced. Where one of the parties to a contract is dead, the issue arising thereon between the survivor and the representatives of the deceased is excepted out of the operation of the act.' Hero it is not the widow who claims a contract; she denies it, but the children allege one which defeats her and inures to their benefit. Their right under that contract passed to them from the decedent by law, and he is the assignor within the meaning of the statute. No disguise can conceal the real issue, which involves the simple inquiry and no other, whether Venus and Eupliemia Webb made an ante-nuptial contract that the survivor should take no part of the estate of the deceased. Any action or proceeding for the determination of that issue, is not within the act allowing parties in interest to be witnesses. At different times and to a number of persons Venus declared that he had no marriage contract or bargain with his wife. To one he remarked, after denying that he had such agreement, that he had children by his former wife, and that if lie dropped off his wife would come in for what the law allowed her; also that if she died first, he would take what the law allowed out of her estate. All these declarations were rejected, for the reason that “ they were manifestly in his own interest if he survived, and not against his interest in any possible event.” The very point in dispute was the making of the alleged contract, averred by one party and denied by the other. Had the point arisen in the lifetime of Venus, his wife could have proven his admissions that there was no such contract, whether such admissions at the time they were made were self-disserving or self-serving. They were offered against those who actually claimed under the contract, no matter what was the form of their claim, and wdiose right to the property or money in dispute hung upon the establishment of it. Clearly one of the alleged parties had the right to prove the other’s admissions that, they had made no such contract or agreement. The testimony consists entirely of declarations and acts of the parties after their marriage, and while they felt the weight of the displeasure of his children because of the marriage. But once did they admit the contract in presence of each other, and then, evidently, to be communicated to his children to effect their reconciliation : they did not become reconciled. Afterward, repeatedly, and to within a few months of his death, in con [597] versations with his neighbors Venus explicitly denied that he had* made any contract of the kind. Had the auditor not been constrained to reject a portion of the testimony, doubtless he would not have been “ of the opinion that the weight of the evidence is in favor of the alleged ante-nuptial- contract.” An oral ante-nuptial agreement should not be found, save upon clear and convincing proof. The burden is upon those who aver it, and they must do more than show a slight preponderance of testimony — they must adduce that which will be satisfactory when considered with the counter testimony, or the proof will be deemed insufficient. Rejecting the widow’s testimony with the other that is incompetent, we think the weight of the competent evidence is against the alleged contract, and certainly not sufficient to warrant its finding. We are not convinced that there is error in the finding of fact, or applications of the law, relative to the widow’s claim for $300 under the Act of April léth 1851, and its supplements. Decree reversed, and it is now ordered and decreed that distribution be made as stated in the “ First Alternative Distribution ” reported by the auditor. Costs of appeal to be paid by the appellees. Record remitted for the enforcement of this decree.