Focht v. Wakefield

Simmons, C. J. In this action, plaintiff seeks a decree that he is the owner of an undivided one-fourth interest in certain described real estate, and for a partition of the same. The appeal involves the force and effect of a postnuptial property settlement. The trial court decreed that plaintiff was not the owner of any interest in the property and dismissed his petition. Plaintiff appeals. We reverse the judgment of the trial court and remand the cause. The facts of the case are not in dispute. Plaintiff is the residuary devisee under the will of Alonzo J. Henderson. The defendants, John Wakefield and Annie Thompson, are the children of Mary J. Henderson. The other defendants are the husband of Annie. Thompson and the tenants in possession of the real estate, and are not involved in this appeal. — 570 — Alonzo J. Henderson and Mary J. Henderson were married June 25, 1936. Mary J. Henderson had been married previously. The defendants here are the children of the former marriage. At the time of the marriage, Mrs. Henderson was, with one exception, the owner of the several parcels of real estate involved in this action. Mr. Henderson contributed nothing to the acquisition of the property. The parties lived together until about July 1, 1937, when they separated. While living apart they, on August 11, 1938, entered into a property settlement agreement, and concurrently therewith gave each other quitclaim deeds to the property which each held in fee. Mrs. Henderson at that time paid Mr. Henderson $600, which he used to acquire an undivided one-half interest in the property which he then occupied as a home. This payment was made by bank check and was endorsed “full settlement of Property rights.” The agreement recited that each of the parties was a resident of Nebraska and was entered into in this state. Thereafter about January 1, 1940, the parties resumed the marriage relation and lived tog-ether until about November 1, 1940, when they again separated and lived apart until Mrs. Henderson’s death. Causes for the two separations are not shown. On January 6, 1941, Mrs. Henderson conveyed a part of her real estate to one Stute. Mr. Henderson joined in the conveyance, saying to the notary at the time: “I and Mrs. Mary Henderson has had writings. She has got her stuff and I have got mine, and I don’t want anything to do with hers.” On January 6, 1941, while living apart from her husband, Mrs. Henderson purchased one parcel of real estate involved in this action. Mrs. Henderson died intestate, a resident of this state, on August 1, 1943. Mr. Henderson died testate, a resident of this state, on August 19, 1943. The estate of each is being probated. Debts of the estates and costs of administration are not involved here. The property settlement agreement recited that the par571 tie's had decided “to live seperately and apart and to discontinue to maintain a home as husband and wife”; that the parties were possessed of real and personal property “in their own right” and desired to “preserve said property and save needless waste there_of in litigation”. The settlement recited that in consideration of $600 paid by Mrs. Henderson to her husband and the execution to him by her of a quitclaim deed to described real estate, Mr. Henderson “relinquishes all interest he now has or may at any time acquire to any property” of Mrs. Henderson; and that Mr. Henderson “agrees to and hereby does” execute a quitclaim deed to Mrs. Henderson of described real estate. It further was agreed that “this settlement is a full, final and complete settlement of all claims and demands that either of the parties hereto may have against each other or any property either real or personal now owned by either of the parties hereto or which may be hereafter acquired by either of said parties; that all of the property now owned” by Mrs. Henderson “or which she may hereafter acquire, both real and personal, shall be clear and free from any claim of the party of the second part whatsoever, and any property either real or personal now owned” by Mr. Hendersón “or that may be hereafter acquired by him, either real or personal, shall be free of any claim or demand of any nature whatsoever of” Mrs. Henderson. The settlement further provided that in case an action for divorce was instituted by either of the parties, the cost shall be paid by the party instituting the proceedings and that if either party employed an attorney “in' said divorce proceeding” he was to pay his own attorney and, in case a divorce action was instituted by one of the parties, the other party “agrees not to in any manner contest said proceeding.” It further was agreed that if either party desired to sell any of his or her property “before decree of divorce is granted”, the other party would join in the conveyance “without any consideration.” The agreement was acknowledged before a notary and promptly filed for record. Neither party obtained a divorce, nor is it shown that a divorce action was instituted. — 572 — The quitclaim deed in the usual form from Mr. Henderson to his wife, of the same date as the agreement, recited a consideration of $600 “and full and complete settlement of property rights” and described the real estate then owned by Mrs. Henderson. It was acknowledged before a notary and promptly filed for record. Plaintiff contends that the property settlement agreement was entered into for the sole purpose of giving each party exclusive control of the property then owned by each; that neither party relinquished his right of inheritance in the property of the other; that by resuming marital relations, the parties abrogated the agreement; and further that the agreement was one to facilitate divorce and was accordingly against public policy and void; and that a one-fourth interest in this property descended to Mr. Henderson as surviving spouse and that plaintiff, as residuary devisee, is now the owner thereof. He prays for a decree confirming that right and for partition. Defendants contend that because of said agreement and quitclaim deed, Mr. Henderson was not one of the heirs and accordingly plaintiff has no interest in the real estate, and pray for a decree confirming their ownership as sole heirs at law of Mrs. Henderson. Both parties pray for equitable relief. The trial court found for the defendants, entered a decree confirming their ownership and denying the prayer of plaintiff. We go first to the principal question presented here, which is: Do a husband and wife have the legal capacity to contract with each other, whereby one or both surrender his or their rights of inheritance in the property of the other? In Jorgensen v. Crandell, 134 Neb. 33, 277 N. W. 785, it was held: “Whether or not a husband and wife may contract with each other under modern statutes depends upon the nature of the statute in force in the jurisdiction whose law governs the occasion and the construction that the courts of such jurisdiction put upon the statute applicable.” Subsequent to the entering of the decree in the district court, we decided the case of Smith v. Johnson, 144 Neb. — 573 — 769, 14 N. W. 2d 424. It there was held that “Postnuptial contracts entered into between, husband and wife while residents of this state in which they settle their property rights, including their respective rights of inheritance in the property of the other, are not authorized by express statute and are invalid and unenforceable.” That decision rests upon the proposition that rights of inheritance in Nebraska are controlled by statute; that the legislature has prescribed the methods whereby rights of inheritance may be barred; and that barring by postnuptial contract is not one of the methods provided. Section 30-101, R. S. 1943, is the statute of descent applicable here. It provides, so far as relevant here, that real property (1) which has not been lawfully conveyed, or (2) which has not been sold under execution or judicial sale, or (3) which has not been lawfully devised, shall descend, where the survivor is not the parent of all the children of the deceased and there are one or more children of deceased living, in a one-fourth part to the surviving husband or wife. Under this statute, the plaintiff claims that a one-fourth part of the real estate descended to Mr. Henderson, and by will was devised and passed to plaintiff. Section 30-105, R. S. 1943, provides that the right of inheritance of the husband or wife may be barred (1) by conveyance, and (2) by sale under execution or other judicial sale. Section 30-107, R. S. 1943, provides that where the deceased husband or wife by will devises real estate to the survivor or makes other provisions for the survivor, the survivor may elect to take the land devised or provision made, or take under the- provisions of the statute for descent and distribution. It thus will be seen that the legislature has carefully protected the right of inheritance in real property, unless it be surrendered or lost in one or more of the manners specified. The legislature also has provided that “A man or woman may also bar his or her right to inherit part or all of the lands of his or her husband or wife by a contract made in lieu thereof before marriage.” R. S. 1943, sec. 30-106. — 574 — This latter provision clearly excludes the barring of the right of inheritance by a postnuptial contract. The legislature having carefully safeguarded the right of inheritance, and provided the method or methods by which it may be barred, must necessarily be held to have intended that the right cannot be barred otherwise. Accordingly, as was held in Smith v. Johnson, supra, the postnuptial contract here relied upon by defendants is invalid and unenforceable. It is to be noted further that the provisions of sections 30-101, 30-105, 30-106, and 30-107, R. S. 1943, hereinbefore discussed, apply alike to husband and wife. The legislature also has provided that “A married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property.” R. S. 1943, sec. 42-202. By these several acts the legislature has placed a married man and woman on a parity with reference to the subject matter of the acts. It is argued, however, that Mr. Henderson conveyed his interest in his wife’s property to her by quitclaim and therefore he barred his right of inheritance. It is not shown that he had any interest in his wife’s property at that time, other than the right of inheritance. But, assuming that he had an interest that could be conveyed to his wife, of necescity when that title passed from him to her, his right of inheritance attached thereto concurrently with the vesting of title in her. Accordingly, it must be held that the right of inheritance was not barred by the quitclaim deed which was executed and delivered at the time of the contract. But defendants, arguing that the contract may be enforced, rely upon the decision in In re Estate of Lauderback, 106 Neb. 461, 184 N. W. 128. The decision there is that where the parties to a marriage contract find it impossible to dwell together in harmony and unity because of misconduct of one of the parties justifying a legal separation, a contract, which provides for immediate separation — 575 — and for the settlement of all the property rights of the parties, in which each relinquishes all rights in and to inherit the property of the other, will be enforced with respect to property rights if the contract is fair and equitable and has been observed by both parties until the death of one of them. The parties in the Lauderbaek case did not present the question that was determined in Smith v. Johnson, supra, and followed here, upon which it is held that the contract, here involved, is invalid and unenforceable. In Erb v. McMaster, 88 Neb. 817, 130 N. W. 576, we determined a case where before marriage an oral agreement was made with reference to the interest of each of the parties in the property of the other. It was reduced to writing immediately after the marriage. After the death of the wife, the husband asserted that the contract was void under the statute of frauds. We there held: “Even if the contract were wholly invalid, which we do not decide, under these circumstances the plaintiff is estopped to allege its invalidity.” In Sovereign Camp, W. O. W. v. Billings, 107 Neb. 218, 185 N. W. 426, it is suggested, but not determined, that property rights springing by operation of law from the marriage relation may be barred by estoppel. In In re Estate of Holmberg, 108 Neb. 382, 187 N. W. 903, the husband obtained a decree of divorce, in which alimony was awarded the wife. Before the decree became final, the wife through the medium of a quitclaim deed released the husband of all claims, rights and interests in his property arising out of the marriage relation. There, a divorce having been granted, misconduct justifying legal separation was shown. It also was shown that the parties had not lived together before the divorce, nor at any time afterward. The husband died before the decree became final, and it was held that the divorce decree never became effective. Holmberg v. Holmberg, 106 Neb. 717, 184 N. W. 134. Thereafter the widow asked for an allowance during the settlement of the estate. It was held that the widow was estopped by the agreement, and support money was denied. — 576 — The Lauderback case was relied upon as an authority for the decision. In the Erb case we held the husband estopped to assert the invalidity of an antenuptial contract. In the Holmberg case we held the wife estopped to assert the invalidity of a postnuptial contract that met the conditions as to cause, separation and surrender of property rights laid down in the Lauderback case, there being no showing as to the wife’s separate estate and she having released all rights to the husband’s property. The rule applicable to the wife must, under our statutes cited herein, apply also to the husband. Accordingly, it follows that, where the heirs of the deceased wife bring the contract, as to cause, terms and performance, within the holding of the Lauderback case, estoppel prevents the surviving husband from asserting the invalidity of the postnuptial contract. It is the rule that “An heir stands in privity with an ancestor, and an estoppel enforceable against the ancestor is likewise enforceable against the heir.” Jorgensen v. Crandell, supra. Accordingly, the Question is: Have the defendants brought their case within the requirements of the rule announced-in the Lauderback case ? Obviously they have not, for they have neither pleaded nor proved that there was misconduct of one of the parties justifying a legal separation. But defendants answer this with the contention that a valid reason for a separation will be presumed from the failure of the adverse party to allege the nonexistence of such a valid reason. We see no merit to this contention. To so hold would be to materially modify and relax the rule. Defendants plead the contract and rely upon it to bar the claim of the plaintiff. It was incumbent upon them to plead and prove the facts that made their defense good. But we do not rest the decision on this question upon that ground alone. It was advanced in the Lauderback case that such a showing was essential to contracts of this nature. That contention was controverted. We there held that such a showing was essential. The rule in the Lauderback case re — 577 — quires that there' exist at the time of the postnuptial agreement those conditions upon which one of the parties could successfully institute a divorce proceeding and secure a separation decree, with the resultant allocation of property rights by the court. The standards there required should not be lowered. Consistent with this holding we, in Smith v. Johnson, supra, denied a plea of estoppel where there was neither a separation nor misconduct of either party justifying a legal separation. The plea of estoppel must be denied here. In this view of the case, it becomes unnecessary to consider the contention of the plaintiff that the contract does not renounce rights of inheritance; that it was abrogated by a resumption of the marriage relation; or that 'it was void because entered into to facilitate a divorce. The judgment of the district court is reversed and the cause remanded with directions to enter a judgment that the plaintiff is the owner of an undivided one-fourth interest in the property involved, confirming his title thereto, and granting him appropriate relief based upon that finding. Reversed. Chappell, J., dissents.