Fischer v. Dolwig
| Decision Date | 09 February 1918 |
| Docket Number | 1915 |
| Citation | 166 N.W. 793,39 N.D. 161 |
| Court | North Dakota Supreme Court |
Action to set aside a decree of the County Court of Stark County distributing the estate of a deceased person.
Appeal from the District Court of Stark County, W. C. Crawford, J.
Judgment for defendants. Plaintiff appeals.
Affirmed.
Charles Simon and Casey & Burgeson, for appellant.
The marriage settlement is void under our Statute of Frauds because it was not signed until some length of time after marriage. An oral antenuptial contract other than to marry is void and cannot be validated after marriage. 21 Cyc. 1293; Comp. Laws 1913, § 5888, Rowell v. Balber, 142 Wis. 937, 27 L.R.A.(N.S.) 1140, 125 N.W. 937; McAnnulty v. McAnnulty, 120 Ill. 26, 60 Am. Rep. 552, 11 N.E. 397; Richardson v. Richardson, 148 Ill. 563, 26 L.R.A 305, 36 N.E. 608.
In antenuptial contracts affecting property, good faith is the cardinal principle in such contract. If the provision made for the wife is unreasonably disproportionate to the means of the husband, the presumption of designed concealment is raised and the burden of disproving the same is upon him. Re Pulling, 93 Mich. 274, 52 N.W. 1116; Achilles v Achilles, 151 Ill. 136, 37 N.E. 693; Tayor v. Taylor 144 Ill. 436, 33 N.E. 532.
The waiver of notice and citation is not sufficient to excuse the service of such citation in the different proceedings had in the probate of an estate. Comp. Laws 1913, § 8530.
No waiver of any kind can be effective in a probate proceeding unless the person executing such waiver has already appeared in such proceeding,--at the date of the waiver here, no proceeding had been instituted in court. Comp. Laws 1913 § 8555.
Where a party understands and signs an instrument, he is estopped to question it, or where he assumes a position in a judicial proceeding. 16 Cyc. 796; Gjerstadengen v. Van Duzen, 7 N.D. 612, 66 Am. St. Rep. 679, 76 N.W. 233.
Property of decedent which is directed by statute to be set apart to the widow vests in her at once by operation of law, upon the death of the husband. 18 Cyc. 403; Fore v. Fore, 2 N.D. 260, 50 N.W. 712.
Marriage contracts do not bar the wife's statutory exemptions unless such exemptions are particularly mentioned and then only when there is full and sufficient provision made for the wife. 21 Cyc. 1260; Re Pulling, 93 Mich. 274, 52 N.W. 1116; McMahill v. McMahill, 105 Ill. 596, 44 Am. Rep. 819; Leach v. Leach, 65 Wis. 284, 26 N.W. 754; Zachmann v. Zachmann, 201 Ill. 380, 94 Am. St. Rep. 180, 66 N.E. 256.
Conveyances which leave the wife without support will be set aside as fraudulent.
Our statute expressly authorizes an action in the district court to recover real property or to set aside a decree of the county court in a proper case, at any time within three years after discovery of the fraud or other ground upon which such action may be instituted. Fischer v. Dolwig, 29 N.D. 561, 151 N.W. 431.
T. F. Murtha and J. W. Sturgeon, for respondents.
Any person not under disability may waive any notice or citation designed to secure jurisdiction over his or her person. The county court secured jurisdiction over the property of this estate by the filing of the petition for administration. Attached to and accompanying the petition was a written and signed waiver of service of all citations and notices "which otherwise would be required by law in the course of the administration of said estate." Code, § 8565; 18 Cyc. 120, P 4; Flood v. Kerwin, 113 Wis. 673, 89 N.W. 845.
Also lack of notice is immaterial to persons who appear and consent to the proceedings. 29 Cyc. 1117 (c).
A waiver by the party for whose benefit or protection notice should be given is equivalent to notice, and dispenses with it. Williams v. Addison, 93 Md. 41, 48 A. 458; Allured v. Voller, 107 Mich. 476, 65 N.W. 285; People ex rel. Martin v. Albright, 23 How. Pr. 306; Smyser v. Fair, 73 Kan. 773, 85 P. 408; Rice v. Hosking, 105 Mich. 303, 55 Am. St. Rep. 448, 63 N.W. 311.
Also a general appearance operates as a waiver of all defects in process. 3 Cyc. 510 (II), 512 to 514, 515 (II) of Person (A); 2 R. C. L. 324, § 4.
So also, a voluntary appearance waives all defects in service of citation. 1 Black, Judgm. 2d ed. § 225; Nashua Sav. Bank v. Lovejoy, 1 N.D. 211, 46 N.W. 411; Lower v. Wilson, 9 S.D. 252, 62 Am. St. Rep. 865, 68 N.W. 545; Waldron v. Chicago & N.W. R. Co., 1 Dakota 351, 46 N.W. 456; Bowler v. First Nat. Bank, 21 S.D. 449, 113 N.W. 618; State ex rel. Railroad Comrs. v. Duluth, W. & P. R. Co., 25 S.D. 106, 125 N.W. 565; Ramsdell v. Duxberry, 17 S.D. 311, 96 N.W. 132; Fanton v. Byrum, 26 S.D. 366, 34 L.R.A.(N.S.) 501, 128 N.W. 325, 1 N. C. C. A. 812; Forman v. Healey, 19 N.D. 116, 121 N.W. 1122; Hart v. Wyndmere, 21 N.D. 383, 131 N.W. 271, Ann. Cas. 1913D, 169; Rogers v. Penobscot Min. Co., 28 S.D. 72, 132 N.W. 792, Ann. Cas. 1914A, 1184.
Fraud must be proved. It cannot be presumed. 20 Cyc. 108 (j), 120 (l).
Plaintiff made all her discoveries six months before making or entering of final decree; she took no steps to correct same. If the waiver of notice had been procured by fraud and this fact had been brought to the attention of the county court, it must be presumed that the judge would have required personal service of personal citation. By silence after full knowledge, plaintiff ratified the waiver and is estopped to repudiate it. Emerson-Newton Implement Co. v. Cupps, 15 N.D. 606, 108 N.W. 798; 2 Black, Judgm. 2d ed. § 633; 16 Cyc. 684, 685, 770, 772 to 805; 20 Cyc. 92; McDonough v. Williams, 8 L.R.A.(N.S.) 452, note; Bostwick v. Mutual L. Ins. Co., 116 Wis. 392, 67 L. R. A. 705, 89 N.W. 538, 92 N.W. 246; Robertson v. Smith, 15 L.R.A. 274, note; Dolvin v. American Harrow Co., 28 L.R.A.(N.S.) 892, note.
Fraud could not be imputed to the other heirs, and as to them plaintiff owed the duty to promptly repudiate the waiver if it was wrong. 16 Cyc. 759 et seq; Bacon v. Mitchell, 14 N.D. 454, 4 L.R.A.(N. S.) 244, 106 N.W. 129; Fanton v. Byrum, 26 S.D. 366, 34 L. R. A. (N.S.) 501, 128 N.W. 325, supra.
The waiver must stand unless by clear, satisfactory, and convincing proof it is shown to have been obtained by fraud. Matchett v. Liebig, 20 S.D. 169, 105 N.W. 170.
Plaintiff's waiver gave the court jurisdiction of the person. The county court's judgment upon a matter within its jurisdiction ranks the same as a judgment of the district court. Comp. Laws 1913, §§ 8524, 8846; Fischer v. Dolwig, 29 N.D. 561, 151 N.W. 431; Sjoli v. Hogenson, 19 N.D. 82, 122 N.W. 1008.
It can only be attacked by moving for correction in the county court or by appeal. Crew v. Pratt, 119 Cal. 139, 51 P. 39; Civ. Code, §§ 715, 716.
In proceedings for final distribution of an estate devised in trust, it is the duty of the court under the law to adjudicate the question of the validity of the trust. Re Harrington, 147 Cal. 124, 109 Am. St. Rep. 118, 81 P. 546; Cunha v. Hughes, 122 Cal. 111, 68 Am. St. Rep. 27, 54 P. 535; Lasley v. Preston, 132 Mich. 208, 93 N.W. 253; Eddy v. Kelly, 72 Minn. 32, 74 N.W. 1020; Chadbourne v. Hartz, 93 Minn. 233, 101 N.W. 68; Winkle v. Winkle, 8 Ore. 193; 1 Black, Judgm. §§ 246 et seq., 252, note 150, § 261, note 135.
The decree of the county court can only be attacked for fraud, or for want of jurisdiction, neither of which appears here. 1 Black, Judgm. 2d ed. §§ 245, 246, 261, note 235, p. 394, § 262, note 150, §§ 267, 268, 291; 23 Cyc. 1061, 1323, 1295 (9); 18 Cyc. 665, 402, note 83; 11 Decen. Dig. Judgments, §§ 470 et seq.
By signing the waiver and by her appearance personally, and by attorney in the county court, plaintiff has estopped herself from attacking the decree of the county court. Boyd v. Wallace, 10 N.D. 78, 84 N.W. 760.
Plaintiff is bound by her appearance and acts in the county court, and she cannot disclaim authority of her attorney because he may have erred in judgment on matters of law. Bacon v. Mitchell, 14 N.D. 454, 4 L.R.A.(N.S.) 244, 106 N.W. 129; Keenan v. Daniells, 18 S.D. 102, 99 N.W. 853; Corson v. Smith, 22 S.D. 501, 118 N.W. 705.
Plaintiff has not been deprived of any right by any act of others. Bruegger v. Cartier, 20 N.D. 72, 126 N.W. 491.
An oral marriage settlement made before marriage and reduced to writing after marriage is valid and enforceable where the settlement has been fully executed, and where the widow keeps the property received under such settlement. Erb v. McMaster, 88 Neb. 817, 130 N.W. 576; Claypoole v. Jaqua, 135 Ind. 499, 35 N.E. 285; Stubbs v. Whiting, 1 Rand. (Va.) 322; Woods v. Woods, 77 Me. 434, 1 A. 193; Powell v. Meyers, 23 Ky. L. Rep. 795, 64 S.W. 238; De Farges v. Ryland, 87 Va. 404, 24 Am. St. Rep. 659, 12 S.E. 805; Sanders v. Miller, 79 Ky. 517, 42 Am. Rep. 237; Lively v. Paschal, 35 Ga. 218, 89 Am. Dec. 282; Rhoades v. Davis, 51 Mich. 306, 16 N.W. 659.
By appropriate terms all statutory rights in the homestead or in exemptions may be waived. Rieger v. Schaible, 81 Neb. 33, 17 L. R. A. (N.S.) 866, 115 N.W. 560, 116 N.W. 953, 16 Ann. Cas. 700; Re Deller, 141 Wis. 255, 25 L.R.A.(N.S.) 751, 124 N.W. 278; 18 Cyc. 390 to 396.
The county court's final decree of distribution is conclusive on the right of exemptions. 18 Cyc. 390 to 396, supra; 23 Cyc. 1295.
This is an action to set aside a decree of the county court of Stark county, awarding to the defendants the real and personal property of one Jacob Dolwig, deceased, and asking that the defendants be compelled to account for the profits of the...
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