Bibelhausen v. Bibelhausen

• Decision Date: 12 January 1915
• Citation: 150 N.W. 516,159 Wis. 365
• Parties: BIBELHAUSEN v. BIBELHAUSEN ET AL.
• Court: Wisconsin Supreme Court

159 Wis. 365

150 N.W. 516

BIBELHAUSEN

v.BIBELHAUSEN ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1915.

Appeal from a Judgment of the Circuit Court for Shawano County; John Goodland, Circuit Judge. Reversed.

Action impeaching the validity, on the ground of fraud, of an antenuptial agreement and to have it and the record thereof canceled.

Timlin, J., dissenting.

The court found these to be the facts, in general effect: September 2nd, 1901, plaintiff and Joseph Bibelhausen, now deceased, without any preliminary arrangements as to property, mutually agreed to become man and wife. September 11th, thereafter, they visited the city of Milwaukee for the purpose of having their marriage ceremony performed. They went to the office of an attorney where plaintiff was procured to sign the paper sought to be avoided. It was in due form of an antenuptial contract and release by the plaintiff of all future claims upon her intended husband's property or estate, including dower right, in consideration of marriage and five hundred dollars. The receipt of the money was acknowledged. The release was very comprehensive, precluding, if valid, plaintiff from making any claim of any character upon the estate of her intended husband, either in case of his death or the parties otherwise separating. Execution of the paper was witnessed and acknowledged so as to entitle it to be recorded in the office of the Register of Deeds.

After execution and delivery of the paper the parties were married. Plaintiff confided implicitly in her intended husband. She was a woman of but little business experience. She owned a house and forty acres of land and some personal property worth some eight hundred dollars. Shortly after the marriage such property was conveyed to Mr. Bibelhausen who, later, sold the same and had the benefit of the proceeds. On the day of the execution of the agreement, Mr. Bibelhausen, in the absence of his intended wife, caused the instrument to be prepared ready for signature. The pecuniary consideration in it was never paid. Plaintiff did not see the instrument, after its execution, during the lifetime of Mr. Bibelhausen. He kept it, though, about the time he made his will, he caused it to be recorded in the office of the Register of Deeds of the county where the parties resided. No provision of any kind was made by him for plaintiff, outside of such agreement, prior or subsequent to the marriage, except by will. The instrument contained no promise on his part and was not signed by him. It was an agreement on her part, in consideration of marriage and five hundred dollars, acknowledged to have been paid, to make no claim upon Mr. Bibelhausen's property or estate in case of his death or the parties otherwise ceasing to be husband and wife or ceasing to live together as such, and renouncing all property rights which she might, in the absence of the renouncement, acquire by the marriage which was in contemplation. He died testate November 23rd, 1912. His will was dated December 31st, 1910. The parties lived together as man and wife continuously, from their marriage until the death occurred. The will was duly admitted to probate. It disposed of real and personal property of approximately $13,000. He left surviving, besides plaintiff, a son and two grandchildren. Their relationship to him was through a former marriage. He made these provisions for plaintiff, including the general direction for precedent payment of his debts not excepting any existing in her favor under the antenuptial agreement: “All the household furniture, goods and effects of every kind and nature absolutely” and fifteen dollars per month for life. The use of the homestead, describing the realty and the buildings thereon, to be free from all taxes, general and special, and insurance. Prior to the death of Mr. Bibelhausen, he sold the property so willed to plaintiff for a home and removed to another place which passed by the will, but not to plaintiff. The statutory time for election not to take otherwise than under the statute has not expired. Mr. Bibelhausen possessed some property at the time of the marriage.

On such facts the conclusion was reached that the agreement was contrary to public policy and void.

The trial judge filed an opinion and, as seen, probably, by the cast of the findings, allowed counsel for the prevailing party to prepare them. In the opinion, doubt is expressed as to what to call the agreement; and it is said that, in substance, Mr. Bibelhausen purchased in advance his freedom from plaintiff as to property rights, in form, for five hundred dollars, which he omitted to pay; that the marriage, under the circumstances, became a matter of bargain and sale, rendering the agreement void as against public policy, though there may not have been any actual fraud or deception; that plaintiff either did not consent to the arrangement, stated in the instrument signed by her, or her consent was obtained under such circumstances as to render it nugatory; and that there was in reality no such antenuptial pecuniary provision as is contemplated by section 2169, Stats.

The following not covered significantly, if at all, by the findings, appears by the evidence. Both parties were past the meridian of life when the marriage took place. Each had been previously married and been divorced. He was fifty-three years of age and had a son twenty-four years old. She was forty-nine years of age and the mother of five children, three being of full age and the others seventeen and fifteen years of age respectively. The parties were in substantially the same station in life. They were quite equal in intelligence and freedom from dependence upon entering into marriage relations. There was no effort on the part of Mr. Bibelhausen to obtain the signature of plaintiff to the contract against her will. When she visited the lawyer's office to sign it she knew the purpose of the visit. The lawyer who drafted the paper was a reputable member of the legal profession and did nothing to induce plaintiff to execute the paper. He read it to her, she was made, as he supposed, to know what it meant and signed it without coercion, but with the understanding that it was essential in order to have the contemplated marriage take place.

Eberlein & Eberlein and H. O. Buth, all of Shawano, for appellants.

E. V. Werner and P. J. Winter, both of Shawano, for respondent.

MARSHALL, J.

[1] It is somewhat difficult to discover the exact logic of the court's conclusions. It is claimed, and not denied, that the findings were prepared by counsel for the prevailing party. There is evidence of that in the amount of unnecessary matter contained therein and a somewhat non-judicial form of expression which, to my mind, takes very largely from the respect which findings of fact, judicially and judiciously prepared, are entitled to have. If counsel are permitted to draw the findings and choose the language with which to clothe a judicial determination, I suggest that the most careful attention should be devoted to the work to avoid giving the result a partisan and non-judicial cast.

[2] The learned court characterized the agreement as making the marriage state a matter of bargain and sale, as if the antenuptialcontract were void as matter of public policy, or at least, to be avoided if practicable, rather than sustained. The fact that there were mutual promises of marriage preceding an arrangement as to property matters, was given special significance. That is commonly the case. It does not constitute, even a badge of fraud, much less, in itself, ground for declaring a contract void as contrary to public policy.

[3][4] While it is true that the circumstances characterizing the making of an antenuptial contract, where there is anything suggesting unfairness in the property provision, are to be scrutinized with care and the agreement held void, if it was not freely and understandingly entered into. To challenge validity is to allege fraud and that the instrument was the result thereof. In such a case the burden to establish fraud is on the party alleging it, and such burden can only be efficiently lifted by clear and satisfactory evidence. The mutual intention of the parties, in such circumstances, is just as binding as is any other agreement. There is nothing inherently suspicious or bad about such an agreement. The contrary logic in the findings is wrong as decidedly shown by the decisions of this court. West v. Walker, 77 Wis. 557, 46 N. W. 819;Deller v. Deller, 141 Wis. 255, 124 N. W. 278, 25 L. R. A. (N. S.) 751;Oesau v. Estate of Oesau, 157 Wis. 255, 147 N. W. 62.

[5] True, an agreement whereby the future wife releases her claim to her right of dower and other rights, in the estate of her future husband, must be free from fraud or imposition and is to be regarded with rigid scrutiny, and will not be approved where it appears that the future wife was overreached or induced by false representations to make the contract. But deceptions and false representations are not to be presumed and found without evidence. Such characteristics must be affirmatively established and clearly so. The presumptions are rather against such reprehensible conduct than the contrary, though they may be circumstantially so established. Events which would so establish such elements in case of a young and inexperienced person on the one side and a person of superior business acumen on the other, or where the inducements to marriage on the woman's side were largely financial and companionship in the marriage relation with the home life were secondary, might overcome the prima facie effect of the executed contract, would not when the advantage of the latter being the main thing, as in case of a person circumstanced as the parties were in this case, would not.

[6] As said in Oesau v. Estate of Oesau, the overshadowing thing in dealing with such a contract as the one before us, is the intent of the parties at the...