Comstock v. Comstock
| Decision Date | 29 November 1920 |
| Docket Number | 20 |
| Citation | 225 S.W. 621,146 Ark. 266 |
| Parties | COMSTOCK v. COMSTOCK |
| Court | Arkansas Supreme Court |
Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor reversed.
Decree reversed and cause remanded.
E. L Matlock, for appellant.
1. The antenuptial contract was a jointure and reasonable, and bars dower. Kirby's Digest, §§ 2695-6; 62 Ark. 79; 140 N.W. 872; 21 Cyc. 1255; 79 Ky. 517; 98 N.E. 588; 108 Id. 691; 110 Id. 34; 130 N.W. 155; 87 Ark 175.
2. Marriage was a sufficient consideration to support the antenuptial contract. Such contracts, when freely entered into and when not unjust or inequitable, are favored and enforced and liberally construed to give effect to the intent of the parties. 123 P. 742; 33 Kan. 449; 61 Id. 683; 116 Ind. 545.
3. At common law husband and wife could not contract with each other, but in equity they could, and are bound if the contract is fair and reasonable. 46 Ark. 542; 41 Id 177; 42 Id. 503; 95 Id. 523; 75 Id. 127; 67 Id. 16; 101 Id. 522. All the equities of this case are with appellant, as he lived up to the provisions of the antenuptial contract, and it should be upheld.
Sam R. Chew, for appellee.
1. The contract sued on is a nullity and void on its face, as it does not comply with the law, and is indefinite and uncertain. It was not acknowledged and recorded.
2. Appellant was not a competent witness. Even if a good and valid contract, the action here is premature and untimely, and the authorities cited for appellant are not in point.
On the 20th day of August, 1914, the appellant and appellee entered into the following contract:
The appellant and appellee were married on September 11, 1914, and lived together until about May, 1919, when they separated. In the early part of January, 1918, the appellant paid to appellee the sum of $ 2,000, which appellant claims was paid by him to the appellee and accepted by her in settlement of the ante-nuptial contract. After the alleged settlement the appellee refused to join appellant in the conveyance of her dower interest in certain real estate of appellant, and after the separation appellant instituted this action against the appellee, the purpose of which was to confirm the ante-nuptial contract and the settlement made between the appellant and the appellee and to divest appellee of any possibility of dower in appellant's lands.
The appellee, in her answer, admitted that the appellant had paid her the sum of $ 2,000, but denied that such payment was made in settlement of the ante-nuptial contract. She alleged that she and the appellant found that it would be impossible to live peaceably and quietly together, both having children by a former marriage, and that they agreed to separate, and that the $ 2,000 was paid to her to enable her to buy a home which she and her children could occupy separately and apart from the appellant and his children. She alleged that the so-called ante-nuptial contract was void because it was never acknowledged; that she did not refuse to join the appellant in the conveyance of his real estate, but claimed that she was entitled to the value of her expectant dower interest in the proceeds of such sales. She prayed that appellant's complaint be dismissed for want of equity. The ante-nuptial contract, supra, was introduced in evidence.
Over the objection of appellee, the appellant testified substantially as follows: That after their marriage, and while they were still living together, he paid to the appellee the sum of $ 2,000, which was a settlement under the ante-nuptial contract "to cover everything up to January, 1918." It was agreed that, if they continued to live together and accumulated more money, the appellee would get her share of it. The $ 2,000 was paid the appellee for her interest in whatever property appellant had up to January 1, 1918, and appellant then had in mind to give appellee a share in any property accumulated thereafter upon the basis of the contract. He did not know that they were going to separate. Before the settlement, appellee had purchased a home. They continued to live together until May or June, 1919, when she moved into her own home. After the payment to his wife of the $ 2,000 and up to the time of the separation, he had not accumulated any more property, but on the contrary, if there were any change, he had lost. In addition to the $ 2,000, he gave his wife before she left him $ 65, the proceeds of some old accounts that he did not consider of any value at the time he made the settlement. Appellant had six children by a former marriage. At the time the ante-nuptial contract was executed and at the time of the marriage appellant estimated his estate to be worth between fourteen and sixteen thousand dollars, but at the time he paid the appellee the $ 2,000, appellant doubted if his estate was worth as much as fourteen thousand dollars. At the time appellant paid the appellee the $ 2,000 there was no agreement that appellee should have any further interest in appellant's property. He understood that she was claiming an interest in his home place in addition to her home, and he wanted to settle the whole matter because he might die first, and he told her when he paid her the money that she would have no further claim on his real estate, and she agreed to it, and made one or two deeds after that without demanding any money, but had recently refused to sign a lease unless appellant would give her one-half of the money, and thereupon appellant brought this suit. Appellee left appellant voluntarily, and there was no agreement between them that he would support her if she left him. He told her that he could not keep up two homes, and she replied: "I am going if I don't get a cent."
The appellee testified that she bought the Wood property where she then lived, paying $ 2,000 for it; that she knew that she was not going to stay with her husband and told him that she was going to buy the property, and he said that it might be a good idea, and that he would pay her what she was due if she would agree to move if he died before she did. She accepted the $ 2,000 on those terms. Appellant said that it would not affect the ante-nuptial contract. Appellee did not decline to join appellant in the execution of deeds except as it might affect her interest. At the time the appellant paid her the $ 2,000 he said that $ 2,000 was what her part would be, and that he would pay it to her then if she would give up the homestead rights. He said he was worth about $ 14,000. He told appellee at the time they were married that his estate was worth $ 20,000. Appellee moved to the house where she now lives about one year after the appellant paid her the $ 2,000. Appellee joined her husband in the sale of some real estate after he paid her the $ 2,000. He told her that he had to sell the same to settle some debts. She did not get any of the money. Appellee had an estate of somewhere about $ 8,000 in real and personal property at the time she and appellant were married.
The court entered a decree declaring that the $ 2,000 paid by the appellant to the appellee was an advancement and constituted a lien upon her dower interest in appellant's property. The court also decreed that the ante-nuptial contract between the appellant and the appellee be canceled and that the appellant's complaint be dismissed for want of equity, and that the appellee have a judgment for all costs, etc. From that decree is this appeal.
In Bryan v. Bryan, 62 Ark. 79 at 79-84, 34 S.W. 260, we said: "Jointure is defined to be 'a competent livelihood of freehold for the wife of lands and tenements, to take effect in profit and possession presently after the death of the husband, for the life of the wife at least.'" 2 Blackstone, Com. 137. "One mode of barring the claim of a widow to dower," says Mr. Washburn, "is by settling upon her an allowance previous to marriage, to be accepted by her in lieu thereof." Though the ante-nuptial contract under review may not be technically a jointure, under the provisions of our statute, sections 2695-96-97, it was nevertheless intended by the parties as a provision, made by the appellant and accepted by the appellee, in lieu of dower. The court, therefore, was correct in treating the contract as erecting an equitable jointure. See 4 Kent's Com. 55; ...
To continue reading
Request your trial