Hockenberry v. Donovan

Brooke, J. (after stating the facts). It is the claim of complainant that she was induced to execute the first contract (drawn by L. H. McCall) by fraud, and that at the time she executed it she was so agitated and confused that she did not understand or appreciate its legal import. As to what occurred at and immediately before the time of its execution, we have the evidence of her sister, upon the one hand, and, upon the other, the evidence of Mr. — 376 — McCall, who drew the paper, and Mr. G. M. Rowley, a justice of the peace and business man of Charlotte. The interest and bias of Mrs. Fowler is obvious. The record shows a relationship of an extremely intimate character between the two sisters; and that the complainant (herself childless) had stated thatishe desired Mrs. Fowler to inherit her property. Mrs. Fowler, who had kept a millinery store in Charlotte for many years, testified that on the day in question Hockenberry called upon her sister at her place of business, and that she was called upstairs, where they were; that Hockenberry said to her, “Mrs. Fowler, Emma and I have made up our minds to get married tonight. I have a little business with Emma down at Mr. McCall’s office, and I want you to go with her. You see my children don’t want me to get married, and I have had to have a paper drawn up for her to sign. It don’t make a d — n bit of difference to her whether she signs it or not (pardon me, Mrs. Fowler). I will take good care of her while she is my wife, and will amply provide for her in case of my death; but it will satisfy the children, and must be signed before we are married.” The witness further testified: That she accompanied her sister to the office of L. H. McCall, where the contract was read and executed; that complainant was much agitated, and paid little attention to the paper; that when the reading was commenced complainant said: “There is no use of your reading that to me. I don’t care anything about it. I have a good understanding with Mr. Hockenberry, and I trust him fully.” That Mr. Hockenberry and herself were trying to calm the agitation of complainant, when Mr. Hockenberry again assured complainant that it would make no difference to her whether she signed or not, as he would provide for her in case he should die first, to which complainant replied, “ I can trust you, papa.” Upon cross-examination, this witness testified: — 377 — “Q. Did Mr. McCall, at that time, state to you and your sister that your sister, by the terms of that contract, waived all rights in the property of Mr. Hockenberry ? “A. I think so. "Q. Did you understand that when he stated it to you ? "A. I might — yes; I might have understood it, and yet I paid so little attention.” The hour of this interview is fixed by both this witness and complainant at about 4 o’clock p. m. Standing against this testimony, we have the evidence of L. H. McCall and G. M. Rowley. Mr. McCall is an attorney of experience and good repute. Both testify that the contract was read over to complainant and explained to her, and in particular it was explained to her that if she signed it she would waive all rights in Mr. Hockenberry’s property, real and personal. They deny that upon that occasion Mr. Hockenberry told complainant it would make no difference to her if she signed the paper, as he would provide for her in case he went first. Mr. McCall testifies that Mr. Hockenberry said: “Well, if you don’t want to sign the contract, the marriage will be off with.” Both Mr. McCall and Rowley testify that the deed mentioned in the contract was executed and delivered to complainant at this interview. Both these witnesses are of good repute, and neither has the slightest apparent interest in the subject-matter of the case. That deed was recorded at 9:45 a. m. on the morning of December 20th. It is apparent, therefore, if these witnesses are not mistaken as to the time of delivery, Mrs. Fowler and complainant are mistaken as to the hour at which the contract was signed. Apparently after the first contract was executed, complainant and Hockenberry went to the office of Mr. J. M. C. Smith, where the second contract was drawn and executed. It is worthy of note that there is no averment of fraud, coercion, or lack of comprehension in reference to this contract. Mr. Smith is a lawyer of ripe experience, at present representing his — 378 — district in Congress. He testifies that he prepared the agreement at the request of both of the parties; that they executed it in his presence; and that he noticed nothing unusual in the appearance of the complainant at that time. Much testimony was introduced by the defense tending to show that complainant had frequently asserted. that she married Mr. Hockenberry, not for his money, but for companionship. A rather noteworthy fact in connection with the hearing in this case is that neither complainant nor her sister were examined in open court. Their depositions, both in chief and upon rebuttal, were taken before a notary public and read at the hearing. Considering the age and experience of the complainant, the relative situation of the parties, and in the light of the testimony in this record, we have no hesitation in agreeing with the learned circuit judge that the complainant— “Was not misled as to the contents thereof; that it was explained to Mrs. Woolley by Mr. McCall that if she signed the contract she would waive all rights in the property of Mr. Hockenberry; that she understood that the object of the making of the contract was to bar her participation in the estate of Mr. Hockenberry, if they were married, and she should survive him.” In the second or “ Smith ” contract, two considerations appear: The covenant of marriage and the mutual agreement of each to waive all interest in the estate of the other. The reason for this contract is apparent, when consideration is given to the fact that complainant herself was at the time possessed of some real estate, aside from that conveyed to her on that day by Hockenberry, and, in case of her death before that of her husband, she desired it to descend to her sister, Mrs. Fowler. We have no doubt that complainant was acquainted in a general way with Hockenberry’s financial reputation, which was that of a prosperous farmer in the community, and that she deliberately entered into the contract, hoping, perhaps, to be able to induce her prospective husband to make further provision for her by gift inter vivos or — 379 — by will; and it may be that his untimely end alone prevented the realization of one or the other. In any event, it is, we think, clear that, confronted with the alternative of signing the contract or foregoing the marriage, she chose the former. It should be remembered that complainant lacked neither years nor experience She had reached that age when sentimental considerations in new marital undertakings are supposed to have little weight. It is difficult to believe that such a woman could be readily coerced or deceived. But it is urged in her hehalf that, even if the contracts are held to be valid, her dower and homestead rights only are cut off; and that under Act No. 286 of the Public Acts of 1909 she is still the owner in fee of an undivided one-third of the lands of which Clinton Hockenberry died seised. It would seem that a simple reading of the first contract would be a sufficient answer to this claim. In it she repeatedly bars herself from all participation in the estate of Hockenberry as his wife or widow, and all interest which shall or may be vested in her by virtue of her marriage. It can hardly be contended' that the statute in question confers any rights upon widows, except by virtue of marriage. But the second contract is absolutely conclusive upon this point; for in it complainant releases all interest in the property of Hockenberry, “ whether personal or real estate, statutory or dower.” The interest now claimed for her is entirely statutory, which, by the express terms of the instrument, she has waived. It is unnecessary to consider or discuss the point raised by defendants that the statute relied upon can have no bearing, because passed long after the contract in question was entered into. Complainant contends that the contracts do not constitute a legal jointure or pecuniary provision under 3 Comp. Laws, §§ 8931, 8932, and 8933. This may or may not be true; and it is immaterial whether it be true or not. The fact that the law provides by statute a method of barring — 380 — dower by jointure does not deprive the intended wife of the power to bar her dower by any other valid form of antenuptial contract. Barth v. Lines, 118 Ill. 374 (7 N. E. 679, 59 Am. Rep. 374); Stilley v. Folger, 14 Ohio, 610; Naill v. Maurer, 25 Md. 532; Logan v. Phillips, 18 Mo. 22; Desnoyer v. Jordan, 27 Minn. 296 (7 N. W. 140); 14 Cyc. p. 940. Where the parties entering into an antenuptial contract are of mature years and have full understanding of the meaning of the instrument, the agreement, if based on a sufficient consideration, and in the absence of fraud, is valid and enforceable, and is not against public policy. Marriage alone has been held a sufficient consideration to support a marriage settlement. Dunlop v. Lamb, 182 Ill. 319 (55 N. E. 354). In this case, however, there is another consideration. There is a mutual agreement on the part of each to waive all interest in the property of the other. This constitutes a good consideration. Yarde v. Yarde, 187 Ill. 636 (58 N. E 600). See, also, 1 Bishop on the Law of Married Women, §§ 420, 423, and 427; 21 Cyc. p. 1248; 19 Am. & Eng. Enc. Law (2d Ed.), p. 1233; Schouler’s Domestic Relations (5th Ed.), §§ 171,173; 2 Story’s Equity Jurisprudence (13th Ed.), §§ 1367, 1368, 1370. After a review of the authorities and a full consideration of the facts, we are convinced that the decree of the court below, dismissing complainant’s bill and finding that the contracts in question were valid and binding upon complainant, is a proper one. The decree is affirmed, with costs of both courts. Moore, C. J., and Steers, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.