Brooks v. Austin

• Decision Date: 31 October 1886
• Citation: 95 N.C. 474
• Court: North Carolina Supreme Court
• Parties: H. M. BROOKS et al. v. J. L. AUSTIN et al.

95 N.C. 474

H. M. BROOKS et al.

v.J. L. AUSTIN et al.

Supreme Court of North Carolina.

October Term, 1886.

SPECIAL PROCEEDINGS for partition, heard by Shipp, Judge, at Fall Term, 1885, of UNION Superior Court.

(The same case is reported in 94 N. C., 222.)

This was a petition for partition of land among the tenants in common and heirs at law of B. D. Austin, commenced before the Clerk of the Superior Court.

Catharine Helms, one of the defendants, was the widow of B. D. Austin, and is now the wife of A. M. Helms. Said Catharine and B. D. Austin entered into an antenuptial contract in October, 1883, whereby it was agreed that she should become entitled to a child's part of his estate.

The petitioners ask that the land be sold and the proceeds divided according to their respective interests.

The answer of the defendants, raises the question of the right of said Catharine to dower, and in their answer, among other things, they allege that by virtue of said contract, she lost her right of dower and her right to a year's support, and is only entitled to share equally with the heirs-at-law of said B. D. Austin in the property on hand and owned by him at the time of his death.

The answer of A. M. Helms and wife Catharine, among other things, sets up a claim to dower, and asks that the same be laid off.

The antenuptial agreement set up in the pleadings is in these words:

“Know all men by these presents, that I, B. D. Austin, of Union county, and State aforesaid, of the first part, and Catharine Green, of the same county and State, of the second part, doth covenant and agree to the following contract, to-wit: Provided Catharine Green hereafter becomes to be the wife of B. D. Austin, I, B. D. Austin, doth agree for the kind love and affection I have for her, Catherine Green, to make her an equal and lawful heir, with all my other lawful heirs, of all the real and personal property I possess at the time of my death, in lieu and instead of dower or any other provision made and provided by law for widows of deceased husbands. I, Catharine Green, doth covenant and agree to take the distributive share with the other heirs of B. D. Austin, provided I hereafter become the wife B. D. Austin, in place of dower or any provison made and provided by law for widows of deceased husbands. Signed and sealed in the presence of us, October 16th, 1884.”

The lands described in the petition consist of a tract whereon the intestate from whom they descend in his lifetime resided, reduced from its original dimensions by parcels advanced to children, to 123 acres, and of a three-tenth interest in a tract known as the “Dismuke Gold Mine Tract,” containing about 30 acres.

The Clerk ruled that the feme defendant, Catharine, was bound by her contract, and could only take her one-twelfth part, with the other heirs-at-law, of said land, and adjudged a sale thereof for partition. Upon an appeal to the Judge, this ruling was affirmed, and thence the cause is removed by Helms and wife to this Court.

Mr. D. A. Covington, for the plaintiffs .

Mr. I. T. Strayhorn, for the defendants Helms and wife .

SMITH, C. J., (after stating the facts).

We find no just grounds of exception to the validity and efficacy of the agreement as to the estate and interest which the feme shall have in her husband's property after their contemplated marriage and his death. The contract relates to his property, leaving her, under the general law, to retain all her own. The marriage is the essential consideration of the agreement to be content with the share which would fall to a child, in the event of his intestacy.

The contract does not enable him to cut her off by executing a will which disposes of the estate to outside parties, but secures, in any event, to...