Stolenburg v. Diercks

Ladd, C. J. — [28] In the paper executed in Germany in 1865, Antje Stolenburg stipulated that “I hereby release in the firmest manner the inheritance by my father, * * * [29] and by my mother, Antje Diercks, * * * perfectly and wholly to my entire satisfaction, am paid, so that I have no claim after the possible death of my named parents, in no way, whether from my fathór’s o.t my mother’s estate.” The appellant insists that the word “inheritance,” as here used, should be accorded a purely technical .meaning, and limited, in its application, to land only. While, in the strict legal signification of the term as formerly employed, and as may now appear when •so intended, it refers to the devolution of realty, yet, as has been often held, in its popular acceptation personal property also is included, and in meaning it is as broad as the word “succession.” 24 Am. & Eng. Enc. Law, 345; Horner v. Webster, 33 N. J. Law, 387; Swanson v. Swanson, 2 Swan, 460; Adams v. Akerlund, 168 Ill. 632 (48 N. E. Rep. 455); Fort v. West, 14 Wash. 10 (44 Pac. Rep. 104); In re Donahue's Estate 36 Cal. 329. In Fort v. West, supra, the court said: “The old-time refined or sentimental reason for the distinction drawn from the descent of lands and the descent of personal property does not exist in this country. When the rule originated, real estate did not exchange hands as frequently as it does at the present day with us, but was usually kept in the same family, on the male side, from generation to generation. Here land is looked upon more as a commodity, and a common subject of bargain and sale. Titles pass frequently, and owners are continually changing. Also a more extended meaning has been given by courts to the word ‘inheritance’ in some instances. ” Referring to “heirs” and “inheritance”, the court, in Adams v. Akerlund, said: “These words, in their strict common-law signification, refer only to descent or devolution of real property ; ■ but in their broader signification they include both real and personal property.” The meaning to be given “inheritance” as used necessarily depends on the intention of the parties, as gathered from the entire instrument. The evident pur [30] pose was the relinquishment of any claim to the estate of her parents upon their decease. What that estate consisted of does not appear, and the word is used apparently without limitation. It is sufficiently comprehensive to embrace property of every description. Archer v. Deneale, 1 Pet. 585 (74 L. Ed. 272); Deering v. Tucker, 55 Me. 284; Bates v. Sparrell, 10 Mass. 323, 330; Den v. Snitcher, 14 N. J. Law, 53; Jackson v. Robins, 16 Johns. 537; 11 Am. & Eng. Enc. Law, 656. In its narrower and technical meaning, estate is the degree, quantity, nature, and extent of interest which one has in real property. Bouvier Law Dictionary 605. When so used, however, the character of the interest is ordinarily described as an estate in fee, in common, or the like. If employed without indicating the kind of estate, or referring to particular property, then it includes, according to the approved usage of the language, both personal and real property, — property of all kinds which a person leaves at death. In view of the situation of the parties, — the daughter about to leave the fatherland forever, the purpose of the parents to remain, the absence of any showing that the parents then had property, or of its kind, if had, — together with the evident object of the instrument, we are of the opinion that the .intention had was the relinquishment of all claim to property of every kind left at death by either parent. 3 II. Appellant also contends that the .instrument should be limited in its operation to the estate of the deceased in Dermany. Not a word contained therein indicates such a purpose, and we can think of ■ no-principle justifying such a construction. Appellant-relies on decisions limiting the effect of ante-nuptial contracts made in other countries. These proceed, on the theory that in marrying the parties thereto, by tacit agreement, adopt the laws of the matrimonial domicile relating to property rights, the same as though such laws were inserted into the marriage contract; that this tacit [31] agreement is binding so far as these laws extend, that is, throughout that country, and no further; that, in entering into an ante-nuptial contract modifying the rights to be so conferred, the parties are presumed to have in mind this tacit agreement, and in' the absence of anything indicating a contrary intention, to contract concerning their property rights with reference to the country of their domicile only. Saul v. His Creditors, 5 Mart. N. S. 569, (16 Am. Dec. 212), Castro v. Illies, 22 Tex. 479 (73 Am. Dec. 277); Long v. Hess, 154 Ill. 482 (40 N. E. Rep. 335, 27 L. R. A. 791, 45 Am. St. Rep. 143). But the right to inheritance or succession does not' rest on the contract, but is derived from positive law, and in entering into contracts like that in question the heir or distributee inevitably contemplates, not present property rights, but those likely to arise in the future. Plaintiff had no legal claim to any interest in the estate of her parents when she executed the agreement, and the clear distinction between it and ante-nuptial contract is that the latter modifies existing interests, while the former relates merely to a probable right, not present but solely contingent on the ancestors having property at the time of decease and their inclination not to divert it from the statutory modes of descent. 4 III. The authorities seem to hold that such contracts may be set aside when procured by .fraud or undue influence. Brown v. Brown, 139 Ind. Sup. 653 (39 N. E. Rep. 152). But no evidence of either was introduced. No question is made but that the testimony of appellant was properly rejected. It is insisted, however, that, that of her husband should have been received. The contract was signed by him as well as her, and, regardless of whether it affected any property right he might acquire, was a transaction between both of them and deceased. The statute excludes evidence of any “personal transaction”, and is not limited to those which may affect the rights of [32] a party connected with it. He was asked: “Q. Was there any talk between them at that time about releasing her claim to her father’s estate forever? Q. Was there anything said by your wife or her father that did not have time to read it over? These called for facts bearing on the signing of the paper by him as well as her, and directly involved a transaction to which he was a party. For this reason the cases in which either the husband or wife is allowed to testify concerning a transaction had solely with the other are not applicable. See Dettmer v. Begreus 106 Iowa, 585, and cited cases. 5 IV. It will be observed that the instrument mentions, as the consideration for its execution, the payment of 400 marks, and such an amount was given the daughter three days previous. Her husband testified, without objection, that the paper was signed at Rendsburg, Germany; that at the time’ deceased explained that he was not likely to come to the United States, and might never see them again; that nothing “had ever been said about signing the said instrument before that time”; that “her father did not pay her any money at that time; he gave her the 400 marks three days before. ” As no objection was interposed, this testimony was competent. Burdick v. Raymond,, 107 Iowa, 228. It fails, however, to overcome the presumption and the recital of a consideration. His statement that nothing had ever been said about signing the paper before that time can amount to no more than that he had heard nothing of the kind. But, even if true, it does not follow that the consideration was not paid on the conditions’therein stated, and, if so, these, when evidenced in writing, would rest on precisely the same basis. The record is without error. — Aeeirmed.