Campbell v. Prater

• Decision Date: 16 March 1948
• Docket Number: 2553 and 2354
• Citation: 64 Wyo. 293,191 P.2d 160
• Parties: FRANK F. CAMPBELL, As Executor of the Estate of Nellie Campbell Prater, Deceased, Plaintiff and Appellant, v. L. R. PRATER, Defendant and Respondent. FRANK F. CAMPBELL, as Executor of the Estate of Nellie Campbell Prater, Deceased, Plaintiff and Respondent, v. L. R. PRATER, Defendant and Appellant
• Court: Wyoming Supreme Court

191 P.2d 160

64 Wyo. 293

FRANK F. CAMPBELL, As Executor of the Estate of Nellie Campbell Prater, Deceased, Plaintiff and Appellant, v. L. R. PRATER, Defendant and Respondent.

FRANK F. CAMPBELL, as Executor of the Estate of Nellie Campbell Prater, Deceased, Plaintiff and Respondent, v. L. R. PRATER, Defendant and Appellant

Nos. 2553 and 2354

Supreme Court of Wyoming

March 16, 1948

APPEAL from District Court, Sheridan County; V. J. TIDBALL, Judge.

Action by Frank F. Campbell, as executor of the estate of Nellie Campbell Prater, deceased, against L. R. Prater for a declaratory judgment that defendant was barred by written agreement from exercising statutory option to take one-half of deceased wife's estate notwithstanding her will. From a judgment declaring that agreement precluded exercise of such option but did not prevent defendant from receiving all exemptions allowed by law to a surviving spouse, both plaintiff and defendant appeal.

Judgment reversed on dependant's appeal, and plaintiff's appeal dismissed.

For the plaintiff and Appellant in Case No. 2353 and Plaintiff and Respondent in Case No. 2354, the causes were submitted upon the brief of Mr. R. E. McNally of Sheridan, Wyoming.

POINTS OF COUNSEL FOR PLAINTIFF

Postnuptial settlements fixing property rights between the spouses, if unaffected by fraud or overreaching, ordinarily will be upheld, particularly in equity or under statutes removing common-law disabilities of coverture. 41 C. J. S. 562.

An agreement between husband and wife dividing their property may be valid when made for the purpose of reuniting them and re-establishing the marital relation. 41 C. J. S. 565.

The test of validity of postnuptial contracts relating to disposition of property upon the death of a spouse is whether they were fairly and intelligently made. A postnuptial agreement making provision for the wife, in lieu of her rights in the property of the husband, if properly evidenced and reasonable, and freely assented to by her, is valid. Porter v. Axline (Kans.) 114 P. 2nd. 849.

Marriage settlement controlling the division and affecting the descent of property, freely and intelligently made, and which are just and equitable in their provisions, are not invalid. 49 A. L. R. 116.

A contract between husband and wife made when the spouses are separated for legal cause and providing for the payment of a consideration for their reunion is by the weight of authority enforcible by either spouse. 17 A. J. 159.

Mere inadequacy of consideration, unaccompanied by other inequitable incidents, unless so gross as to show fraud, is never a sufficient ground for cancelling either an executed or executory contract, or to defeat the specific performance of an executory contract. 2 Pom. Eq. Jur. 926. 49 A. L. R 151.

A postnuptial agreement whereby a husband releases for the benefit of the wife an interest which he may have in her property will be sustained, particularly in equity, unless procured by the fraud of the wife. 41 C. J. S. 572.

A bargain between married persons who have separated or been divorced, or who contemplate separation or divorce, or reconciliation, is not illegal. Restatement of the Law on Contracts, Chap. 18, Sec. 584.

An agreement to abandon the pending divorce suit and renew cohabitation, being in aid of marriage, accords with public policy, and the courts will enforce a promise founded upon it as a consideration. 1 Bishop, Marriage and Divorce, 76.

The right of the surviving spouse to continue to possess and occupy the homestead is an individual right and not an interest in the testator's property. This right is not subject to testamentary disposition, and does not pass under the decedent's will. Neither is the surviving spouse deprived of this right by virtue of an antenuptial contract which provides that the property of each shall remain their separate and individual property and that the other shall not have any interest therein. Cole's Estate (Okla.) 205 P 172.

For the Defendant and Respondent in Case No. 2353 and Defendant and Appellant in Case No. 2354, the causes were submitted upon the brief of R. G. Diefenderfer of Sheridan, Wyoming.

POINTS OF COUNSEL FOR DEFENDANT

A postnuptial contract respecting property rights must be freely and voluntarily entered into by the parties and be free from any coercion or undue influence.

Where a contract is made between parties standing in a fiduciary relation, such as husband and wife, and the consideration appears to be unfair and inequitable, the presumption arises of fraud or undue influence, casting the burden of proving good faith, freedom from undue influence, and fairness of the consideration, on the party seeking its benefits. 2 Pomeroy on Equity Sec. 951, 955, 956; Hoge v. George 200 P. 96 Wyo. 25 C. J. 1120, Sec. 10.

The general rule is that one spouse is not justified in leaving the other unless the conduct of the offending spouse is such as would in itself constitute a ground for divorce. 19 C. J. p. 80, Sec. 181; 19 C. J. p. 61, Sec. 116-117.

A disagreement over matters of money or property rights is of itself no legal excuse or justification for desertion. 27 C J. S. 590 (citing Rose v. Rose, 124 Pa.Super. 437 188 A. 895; 27 C. J. S. 603 (citing Underwood v. Underwood, 271 F. 553, 50 App. D. C. 323).

It is the legal duty of the wife to live with her husband in the absence of any reasonable cause justifying her separation from him. 26 A. J. p. 637, Sec. 9.

Where a contract between parties standing in a fiduciary relation, such as husband and wife, shows on its face an unfair and inequitable consideration, it raises a presumption of fraud or undue influence, and casts the burden of proof on the party claiming its benefits to prove the contrary. 2 Pomeroy on Equity, Sect. 951, 955, 956.

Where a material fact in issue is in the sole possession or within means of proof of a party, his unexplained failure to prove such fact raises a presumption against him that the fact did not exist. Jones v. Wettlin, 39 Wyo. 331, 271 P. 217; Studebaker Corp. of Amer. v. Hanson, 24 Wyo. 222, 157 P. 582, 160 P. 336; Benedict v. Citizens National Bank, 44 Wyo. 466, 13 P. (2nd) 573; Hildebrand v. CBQRR 45 Wyo. 175, 17 P.2d 65.

All the authorities agree that a postnuptial contract of this sort must be supported by a consideration that is adequate, fair, and equitable. There was no such a consideration here. The law favors marital reunions; but a reunion affords a consideration for a contract only where the separation is lawful. 17 A. J. 159 Sec. 20.

KIMBALL, Justice. RINER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

The case requires a decision as to the binding effect of the postnuptial promise of a husband to waive and relinquish his "optional" right as surviving spouse under a statute, now § 6-301, C. S. 1945, formerly § 6667, C. S. 1920, § 88-101 R. S. 1931.

Plaintiff is the executor of the will of Nellie Campbell Prater, who died in 1945; defendant is the surviving husband of the testatrix. The will deprives the husband of more than one-half of the wife's property. The testatrix is not survived by any child. The statute, cited above, by an amendment of 1915, provides that in such a case "it shall be optional with the surviving spouse after the death of the * * * testatrix to accept the condition of the will or one-half of the estate, real and personal, of the deceased spouse." Defendant seeks to exercise this option by electing to take one-half of the estate, and has filed in the probate proceedings the writing required by the statute to signify that election.

Thereafter, plaintiff brought this action for a declaration of rights under the Uniform Declaratory Judgments Act, claiming that defendant is barred from making such election by his promise not to do so. The promise was made in a transaction evidenced by a writing, called "Memorandum of Agreement," signed by the husband and wife March 11, 1931.

Defendant in his answer admits that he signed the writing, but alleges that it is void or unenforceable for want of consideration; because he was induced to sign it by coercion, and because the bargain shown by the writing is inequitable. The answer also raises the question whether the writing should be construed as a release or waiver of defendant's right to exemptions allowed by law to a surviving spouse, under section 6-1504, C. S. 1945.

The judgment is favorable to plaintiff in declaring that the agreement shown by the writing of March, 1931, is valid, and prevents defendant from electing to take one-half of the property under section 6-301, supra. It is favorable to defendant in declaring that the agreement does not prevent him from receiving in the probate proceedings all the exemptions allowed by law. Both parties have appealed, each complaining of the part of the judgment favorable to the other.

We consider, first, the appeal by defendant who contends that undisputed evidence requires a finding that his promise shown by the writing of March, 1931, is unenforceable for reasons alleged in his answer.

There is no conflicting evidence. The facts are shown by admissions in the pleading and by exhibits. Statements in papers filed in the probate proceedings indicate that in March, 1931, when the writing in question was signed, the wife was about 52 years of age, the husband about 46. The petition alleges and the answer admits that the relationship of husband and wife existed "long prior to March 11, 1931," and continued until the death of the wife. Assessment schedules for the year 1931 show that the assessed valuation of the wife's real property was about $ 37,000. The only listed personal property was valued at $ 300. In the probate proceedings the estate property ...