Focht v. Wakefield
| Decision Date | 09 February 1945 |
| Docket Number | 31853. |
| Citation | 17 N.W.2d 627,145 Neb. 568 |
| Parties | FOCHT v. WAKEFIELD et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Whether or not a husband and wife may contract with each other under modern statutes depends upon the nature of the statute in force in the jurisdiction whose law governs the occasion and the construction that the courts of such jurisdiction put upon the statute applicable.
2. By the provisions of section 30-101, R.S.1943, providing for the descent of real property where a husband or wife survive and of section 30-105, R.S.1943, providing methods whereby the right of inheritance of real property may be barred; and of section 30-106, R.S. 1943, providing that the right to inherit real property may be barred by a contract 'before marriage'; and of section 30-107, giving the surviving husband or wife the right to elect to take by will or by descent under the statute; the legislature has safeguarded the rights of inheritance of married persons and provided the method or methods by which such rights may be barred.
3. By the above provisions and also section 42-202, R.S.1943 the legislature has placed a married man and woman on a parity with reference to the subject matter of the acts.
4. Postnuptial contracts entered into between husband and wife while residents of this state in which they settle their property rights, including their respective rights of inheritance in the property of the other, are not authorized by express statute and are invalid and unenforceable.
5. Where the parties to a marriage contract find it impossible to dwell together in harmony and unity because of misconduct of one of the parties justifying a legal separation, and enter into a contract, which provides for immediate separation and for the settlement of all the property rights of the parties, in which each relinquishes all rights in and to inherit the property of the other, and the contract is fair and equitable and has been observed by both parties until the death of one of them, the survivor is estopped to assert the invalidity of the contract.
6. The above rule requires that there exist at the time of the postnuptial agreement those conditions upon which one of the parties could successfully institute a divorce proceeding and secure a separation decree with the resultant allocation of property rights by the court.
7. An heir stands in privity with an ancestor, and an estoppel enforceable against the ancestor is likewise enforceable against the heir.
8. Where a husband or wife conveys real property direct to the other, the right of inheritance attaches in the grantor concurrently with the vesting of title in the grantee.
Victor Westermark, of Benkelman, and Don Postlethwaite, of St Francis, Kan., for appellant.
Daniel E. Owens, of Benkelman, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
In this action, plaintiff seeks a decree that he is the owner of an undivided one-fourth interest in certain described real estate, and for a partition of the same. The appeal involves the force and effect of a postnuptial property settlement. The trial court decreed that plaintiff was not the owner of any interest in the property and dismissed his petition. Plaintiff appeals. We reverse the judgment of the trial court and remand the cause.
The facts of the case are not in dispute. Plaintiff is the residuary devisee under the will of Alonzo J. Henderson. The defendants, John Wakefield and Annie Thompson, are the children of Mary J. Henderson. The other defendants are the husband of Annie Thompson and the tenants in possession of the real estate, and are not involved in this appeal.
Alonzo J. Henderson and Mary J. Henderson were married June 25, 1936. Mary J. Henderson had been married previously. The defendants here are the children of the former marriage. At the time of the marriage, Mrs. Henderson was, with one exception, the owner of the several parcels of real estate involved in this action. Mr. Henderson contributed nothing to the acquisition of the property. The parties lived together until about July 1, 1937, when they separated. While living apart they, on August 11, 1938, entered into a property settlement agreement, and concurrently therewith gave each other quitclaim deeds to the property which each held in fee. Mrs. Henderson at that time paid Mr. Henderson $600, which he used to acquire an undivided one-half interest in the property which he then occupied as a home. This payment was made by bank check and was endorsed 'full settlement of Property rights.' The agreement recited that each of the parties was a resident of Nebraska and was entered into in this state.
Thereafter about January 1, 1940, the parties resumed the marriage relation and lived together until November 1, 1940, when they again separated and lived apart until Mrs. Henderson's death. Causes for the two separations are not shown.
On January 6, 1941, Mrs. Henderson conveyed a part of her real estate to one Stute. Mr. Henderson joined in the conveyance, saying to the notary at the time:
On January 6, 1941, while living apart from her husband, Mrs. Henderson purchased one parcel of real estate involved in this action.
Mrs. Henderson died intestate, a resident of this state, on August 1, 1943. Mr. Henderson died testate, a resident of this state, on August 19, 1943. The estate of each is being probated. Debts of the estate and costs of administration are not involved here.
The property settlement agreement recited that the parties had decided 'to live seperately and apart and to discontinue to maintain a home as husband and wife'; that the parties were possessed of real and personal property 'in their own right' and desired to 'preserve said property and save needless waste thereof in litigation'. The settlement recited that in consideration of $600 paid by Mrs. Henderson to her husband and the execution to him by her of a quitclaim deed to described real estate, Mr. Henderson 'relinquishes all interest he now has or may at any time acquire to any property' of Mrs. Henderson; and that Mr. Henderson 'agree to and hereby does' execute a quitclaim deed to Mrs. Henderson of described real estate. It further was agreed that 'this settlement is a full, final and complete settlement of all claims and demands that either of the parties hereto may have against each other or any property either real or personal now owned by either of the parties hereto or which may be hereafter acquired by either of said parties; that all of the property now owned' by Mrs. Henderson 'or which she may hereafter acquire, both real and personal, shall be clear and free from any claim of the party of the second part whatsoever, and any property either real or personal now owned' by Mr. Henderson 'or that may be hereafter acquired by him, either real or personal, shall be free of any claim or demand of any nature whatsoever of' Mrs. Henderson.
The settlement further provided that in case an action for divorce was instituted by either of the parties the cost shall be paid by the party instituting the proceedings and that if either party employed an attorney 'in said divorce proceeding' he was to pay his own attorney and, in case a divorce action was instituted by one of the parties, the other party 'agrees not to in any manner contest said proceeding.' It further was agreed that if either party desired to sell any of his or her property 'before decree of divorce is granted', the other party would join in the conveyance 'without any consideration.' The agreement was acknowledged before a notary and promptly filed for record.
Neither party obtained a divorce, nor is it shown that a divorce action was instituted.
The quitclaim deed in the usual form from Mr. Henderson to his wife, of the same date as the agreement, recited a consideration of $600 'and full and complete settlement of property rights' and described the real estate then owned by Mrs. Henderson. It was acknowledged before a notary and promptly filed for record.
Plaintiff contends that the property settlement agreement was entered into for the sole purpose of giving each party exclusive control of the property then owned by each; that neither party relinquished his right of inheritance in the property of the other; that by resuming marital relations, the parties abrogated the agreement; and further that the agreement was one to facilitate divorce and was accordingly against public policy and void; and that a one-fourth interest in this property descended to Mr. Henderson as surviving spouse and that plaintiff, as residuary devisee, is now the owner thereof. He prays for a decree confirming that right and for partition. Defendants contend that because of said agreement and quitclaim deed, Mr. Henderson was not one of the heirs and accordingly plaintiff has no interest in the real estate, and pray for a decree confirming their ownership as sole heirs at law of Mrs. Henderson. Both parties pray for equitable relief.
The trial court found for the defendants, entered a decree confirming their ownership and denying the prayer of plaintiff.
We go first to the principal question presented here, which is: Do a husband and wife have the legal capacity to contract with each other, whereby one or both surrender his or their rights of inheritance in the property of the other. In Jorgensen v Crandell, 134 Neb. 33, 277 N.W. 785, 789, it was held: 'Whether or not a husband and wife may contract with each other under modern statutes depends upon the...
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Focht v. Wakefield
...145 Neb. 56817 N.W.2d 627FOCHTv.WAKEFIELD et al.No. 31853.Supreme Court of Nebraska.Feb. 9, Appeal from District Court, Dundy County; Eldred, Judge. Action by Clifton Focht against John Wakefield and others for partition of realty. From an adverse judgment, plaintiff appeals. Reversed and r......