Borton's Estate, In re, 3217

• Decision Date: 09 July 1964
• Docket Number: No. 3217,3217
• Parties: In the Matter of the ESTATE of Burley F. BORTON, Deceased. Sadie L. SCHULTZ, Appellant (Petitioner-Plaintiff below), v. George F. BORTON, Administrator of the Estate of Burley F. Borton, Deceased, Appellee (Petitioner-Defendant below).
• Court: Wyoming Supreme Court

Page 808

393 P.2d 808

In the Matter of the ESTATE of Burley F. BORTON, Deceased.

Sadie L. SCHULTZ, Appellant (Petitioner-Plaintiff below), v. George F. BORTON, Administrator of the Estate of Burley F. Borton, Deceased, Appellee (Petitioner-Defendant below).

No. 3217.

Supreme Court of Wyoming.

July 9, 1964.

R. L. Gilbert, Morrill, Neb., and Donald E. Jones, Torrington, for appellant.

Hathaway & Sigler and Stanley Hathaway, Torrington, and Holtorf, Hansen & Fitzke, Gering, Neb., for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Burley F. Borton died intestate on the thirteenth day of January, 1963. He left surviving him a widow, now Sadie L. Schultz, appellant herein, three adult sons, and one adult daughter. Shortly after the death of decedent the son George commenced probate of the estate of decedent and petitioned the court for appointment as administrator. The other sons and the daughter joined in the petition, and for the reason that our statute, § 2-93, W.S.1957, gives preference of appointment to the surviving spouse there was annexed to said petition an antenuptial agreement executed on December 4, 1962, by decedent and appellant wherein appellant was alleged to have relinquished her rights under the statute. On January 25, 1963, the petition was granted and on that same day George duly qualified as administrator and entered upon his duties. However, on March 4, 1963, appellant petitioned the court for an order appointing her nominee as administrator of the estate of decedent. Attached to said petition was a pleading alleging that as the surviving spouse of decedent appellant had a preference with power of appointment under the statute, and the relief sought was that the order appointing the son George as administrator be vacated; that his letters testamentary be revoked; and that the matter be set for hearing. No mention was made of the antenuptial agreement. Following this, a pretrial conference was held and it was ordered that issues concerning the validity of the antenuptial agreement, the preference right of appellant in the administration of the estate, and the rights of inheritance to the estate should be made up by pleadings of the parties.

Appellant's pleading in substance alleged that on December 4, 1962, the date of the agreement, she and decedent were engaged to be married and were married on December 6, 1962; that appellant was the surviving spouse and legal heir of decedent along with his children; that on December 4, 1962, decedent owned property valued at $104,465.00 free from indebtedness, but she was without knowledge thereof and had not been informed of the extent or value of such property; that appellant was not informed of her rights as his wife or as a widow; that the meaning of the agreement was not explained to her; that the sum of $10,000.00 received by her on the day the agreement was signed was inequitable, unjust and unreasonably disproportionate to the means of decedent and her rights in his property upon his death; that in addition to the $10,000.00 decedent represented that he would provide for her from his income and property for the remainder of her lifetime; that she was induced to sign the agreement by his statement that he would place his savings account in a joint bank account for her use and protection and she did not learn that this was not done until after the marriage; that as further inducement the decedent represented that the agreement covered only lands that would go to their respective children and she did not understand nor was she advised that it covered all property; and that because of those matters the agreement was void. It was also alleged that the agreement was void as against public policy because it modified and limited the duty of decedent to support his intended wife.

The answer of the remaining heirs of decedent admits the execution of the agreement, payment of the $10,000.00 to appellant, the date of marriage, and that appellant was the surviving spouse. All other allegations above summarized were denied, and it was then affirmatively alleged that appellant had been advised of the effect, consequences, and purposes of the agreement prior to signing; that the nature and value of decedent's property was discussed but was limited after appellant stated she did not want decedent's property but wanted it to go to deceased's children; that the agreement was read and explained to appellant before it was signed; that appellant said she understood it and wanted to sign it; that the consideration received by appellant was fair and equitable; and that appellant was estopped from denying the validity thereof.

Subsequently, on June 18, 1963, appellant filed application for a widow's allowance for support in the sum of $200.00 per month from the date of death to settlement of the estate, and in this she represented that such sum was reasonable for her support in keeping with her circumstances and accustomed mode of life. In this connection it should be stated that she remarried in April 1963, and there is evidence that she was then being supported by her third husband.

Thereafter the matter came on for trial and on June 19, 1963, the trial court entered an order denying the petition of appellant for appointment of her nominee as administrator; denying the application for widow's allowance; overruling the objections of appellant to the antenuptial agreement and holding the agreement to be valid and binding in all respects; and declaring that appellant had no rights of inheritance from decedent's estate. It is from that order that this appeal is taken by appellant.

One of the complaints made on this appeal by appellant was the refusal of the trial court, on two or three occasions, to permit appellant to testify, over objection, to conversations had with decedent because of the so-called Dead Man Statute. We find no occasion seriously to consider such contention for the reason that substantially all of the matters stated in appellant's offers of proof in some fashion or other, aside from the offers, got into the record. Presumably these matters were considered by the trial court in reaching its conclusions, and we have given attention to them here. If the ruling of the trial court was error, it was harmless.

The complaint made with respect to the agreement being contrary to public policy for the reason that its terms relieved decedent of his duty to support appellant also requires little discussion. We do not so read the agreement. True, the agreement is not artfully drawn to avoid such a contention, which is based upon literal language of the agreement, but on the other hand an intention by decedent to commit a criminal act in violation of a husband's statutory duty of support for his wife is not lightly to be inferred. Reasonably construed, the provisions of the agreement relate to the subject matter of the agreement, which was 'the mutual desire of the parties that all property and property rights of each shall be, and be maintained for the benefit of her or him and her or his heirs, legal representatives and assigns, as though no marriage relation even existed between them.' The only direct authority cited by counsel to support the contention is the case of French v. McAnarney, 290 Mass. 544, 195 N.E. 714, 98 A.L.R. 530, but in that case it will be noted that the agreement contained a provision whereby the prospective bride specifically waived her right to support.

Before coming to grips with appellant's principal contentions regarding matters that are said to invalidate the agreement as a matter of law we should relate further some of the circumstances surrounding the transaction.

Paragraph 1 of the agreement recites a deposit of the sum of $10,000.00 by decedent to a savings account in the name of appellant and sets it aside as the sole property of appellant. Paragraph 2 then sets aside to each party all other 'property of whatsoever nature, kind and description now owned or hereafter acquired by her or him' with the right to deal separately with the property as though unmarried, and contains also the usual mutual disclaimer and release of 'all and every right, claim and estate, which she or he might, would or could have, hold or acquire in, to or upon all or any of the said property of the other by reason of said marriage.' A later provision excepts property that might be jointly purchased and held in their joint names subsequent to marriage. Provision is also made for the execution of instruments to carry the terms of the agreement into effect. Paragraph 4 reserves to each of the parties the income from his separate property and provides also that each will be responsible for his own debts contracted before marriage.

It has been stipulated that at the time this agreement was executed the decedent was 76 years of age, with a life expectancy of 5.88 years; that he had been previously married and was survived by four adult children; and that he was possessed of the following property:

                Real Estate in Nebraska--Value   $ 15,047.00
                Real Estate in Wyoming--Value      28,000.00
                Miscellaneous Personal Property     3,104.00
                Savings Account                    62,297.00
                Checking Account                    5,882.00
                                                 -----------
                                          Total  $114,330.00
                

In addition to the stipulation there was evidence that early in May 1962 the decedent suffered a severe illness and was in the hospital for some two months. It was on that occasion that the parties became acquainted. Decedent remained under a doctor's care until at least September 1962, and there was further evidence from which the trial court could find that he was an ill, feeble old man all during the so-called courtship and the marriage. On or about January 9, 1963, he suffered a cerebral hemorrhage and died on January 13, 1963.

Concerning the appellant, it was...