Colbert v. Rings

Mr. Justice Scott delivered the opinion of the court: It is contended by appellees that the alleged agreement, a copy of which is set out in the foregoing statement, was drawn by T. Z. Creel and signed in his presence by appellant and her husband, Colbert, now- deceased, prior to their marriage. Creel is the executor of the will of Colbert and testified in this cause on the part of appellees. Appellant, by an objection in the circuit court, raised the question of his competency, insisting that he was incompetent to testify against appellant under the provisions of section 2 of chapter 51, Hurd’s Revised Statutes of 1905, for the reason that in his capacity as executor he was a party to the suit, and for the further reason that he had, according to appellant’s contention, an interest in the result of the suit. The same objection is urged here by the brief and argument filed on behalf of appellant, but, as is insisted by appellees, we are precluded from considering this question for the reason that the action of the court in admitting testimony is not assigned as error. Swift & Co. v. Fue, 167 Ill. 443. The contract in question is binding upon the wife if it was entered into by her under circumstances which would render valid any other written contract which she was competent to execute, provided, however, that if no provision is made for the wife, or if the provision made for her is disproportionate to the property of the intended husband, taking into consideration the rights given her by the law in the property of her husband in the event of his death prior to her death, then a presumption exists that the execution of the instrument was brought about by a designed concealment on the part of the husband of the amount of property owned by him. In that event, those claiming adversely to the wife have the burden of showing by the proof that at the time she executed the agreement she “had full knowledge of the nature, character and value of the intended husband’s property, or that the circumstances were such that she reasonably ought to have had such knowledge.” Murdock v. Murdock, 219 Ill. 123. This agreement, if otherwise valid, the husband having died leaving no one entitled to share with the widow in the enjoyment of homestead and widow’s award provided by the statute, is sufficient to bar homestead, dower, (Merki v. Merki, 212 Ill. 121,) widow’s award and thirds. Kroell v. Kroell, 219 Ill. 105; Pavlicek v. Roessler, 222 id. 83. It is true that in the case of McMahill v. McMahill, 105 Ill. 596, it was held that an ante-nuptial agreement could not bar the wife’s claim to homestead after the death of her husband, even where the husband left no minor children. The decision was based upon the ground that the homestead could be extinguished only in one of the modes provided by statute, and that an ante-nuptial agreement was not one of such modes. Prom the judgment there, three members of the court dissented. That case was followed or referred to with approval, however, in Crum v. Sawyer, 132 Ill. 443, Achilles v. Achilles, 137 id. 589, and Christy v. Marmon, 163 id. 225. In the case of Zachmann v. Zachmann, 201 Ill. 380, the question of the release of the homestead exemption by an ante-nuptial agreement was again under consideration, and it was there held that such an agreement would not extinguish the right to the homestead where the husband died leaving minor children. The reasoning of that case, however, as well as that of Kroell v. Kroell, supra, and Pavlicek v. Roessler, supra, leads to the conclusion that if there were no minor children the ante-nuptial agreement would be effective. In the case of Merki v. Merki, 212 Ill. 121, it was expressly held that where there were no minor children whose rights in the estate of homestead intervened, it was competent for the husband and wife, “by agreement, to bar the dower of the wife and relinquish the interest of the wife in the homestead estate.” If husband and wife may by a post-nuptial agreement extinguish the right to homestead, it is at once apparent that the same thing may be done by an ante-nuptial agreement. On reason there never was any distinction between an ante-nuptial contract attempting to bar the right to widow’s award and one seeking to extinguish the homestead right of the wife. Both are founded upon the same considerations of public policy and both are for the benefit of the widow and minor children. Where there are no minor children at the death of the husband, the widow’s award and the homestead benefit none but the surviving wife. Neither the law nor public policy furnishes any good reason, under such circumstances, for relieving her from the operation of her ante-nuptial contract entered into by her with complete understanding of its effect, by which she released and waived her rights to the award and to homestead. The McMahill case must yield to the later decisions. In the case at bar it appeared from the evidence offered for appellees, and the court found, that Mr. Creel prepared the contract at the request of Colbert about a month prior to the marriage; that some days after its preparation appellant came to his office and he read the contract to her and explained its provisions; that the extent of Colbert’s property was then discussed between them. The fact, that Colbert then owned an eighty-acre farm was mentioned. Appellant then expressed herself as being satisfied with the contract, and a few days later, and before the marriage, she and Colbert came together to Mr. Creel’s office and the contract was then signed in his presence and in the presence of H. H. Stephens. At that time Colbert owned the eighty acres of land referred to, which was then worth from $4800 to $5600. Appellant was then the owner of $1200 in personal property. After the marriage the farm was sold, the real estate involved in this suit was purchased for $1700, and the $5000 in personal property owned by Colbert at the time of his decease grew out of the remainder of the proceeds of the farm. It thus appears that appellant, at the time of entering into the ante-nuptial contract in question, had full knowledge of the nature and character of Colbert’s property, and as she was familiar with the farm itself and had theretofore had an interest in farm land in the same vicinity, the circumstances were such that she reasonably ought to have had knowledge of the value of this farm. There is no foundation for the contention that the agreement is so unreasonable and unfair to appellant that any presumption against its validity arises. The agreement was reciprocal. Each released and waived all rights in the property of the other, and these mutual covenants, and, in fact, the marriage itself, constituted a sufficient consideration for the contract. The appellant did not read nor write, and it is urged that the evidence shows that she did not understand the effect of the alleged ante-nuptial agreement. Appellant herself testified, after the evidence of the executor had been taken, that she never had any such conversation with him as he detailed, and that she never signed the contract at all and never heard of its existence until shortly before her husband’s death. On these propositions the chancellor found that the preponderance of the evidence was against her, and we are not able to say that he erred in so doing. The evidence of Mr. Creel is the only evidence in the record showing, or tending to show, what took place at the time when he says he and she first conversed about this contract. He testifies that he read it to her and explained it to her, and that she said it was satisfactory to her; that she “didn’t want any of his property,” and “that he had children and she had children, and they wanted the children on either side to be satisfied.” If this evidence be true, and upon this record we think it should be so regarded, it is apparent that, notwithstanding her inability to read and write, she fully understood the contract: The decree of the circuit court of McDonough county will be affirmed. Decree affirmed.