Forwood v. Forwood

• Decision Date: 01 October 1887
• Citation: 86 Ky. 114,5 S.W. 361
• Parties: FORWOOD and others v. FORWOOD and others. (Two Cases.)
• Court: Kentucky Court of Appeals

5 S.W. 361

86 Ky. 114

FORWOOD and others v. FORWOOD and others. (Two Cases.)

Court of Appeals of Kentucky.

October 1, 1887

Appeals from Louisville law and equity court.

Wm Lindsay, A. Duvall, James H. Harlan, S. M. Bernard, and J Barbour, for appellants.

A Barnett and C. B. Seymour, for appellee.

BENNETT J.

William H. Forwood died in Jefferson county in 1883. After his death his will was duly proven and admitted to record in the Jefferson county court. In 1884, the appellee Nancy Elizabeth Forwood, as the widow of William H. Forwood, deceased, instituted suit in the Louisville law and equity court, against the executors and devisees of William H. Forwood, for the purpose of having his estate settled, and her dower in the realty allotted. and her distributable share in the personalty set apart to her. In the second paragraph of appellee's petition and the amendment thereto she discloses the fact that she and William H. Forwood were married in Shepherdsville, Bullitt county, Kentucky, on the fourth day of March, 1880; that on that day, but before the marriage ceremony was performed, she and William H. Forwood entered into a written marriage contract, by which it was agreed that she was to retain her right to all the property that she then owned or might thereafter acquire; to contract and be contracted with in her own name; to sue and be sued in her own name; and that he was to have no right to any property that she then owned or might thereafter acquire, nor any interest therein nor in anywise control the same. It was also agreed that she was to have no right to any property that he then owned or thereafter acquired, nor was she to have dower in any of his real estate after his death, nor any distributable share in his personal estate after his death. She alleges in said second paragraph and amendment thereto that at the time said contract was signed and acknowleged by her, she and William H. Forwood were already engaged to be married; "and the contract, while it was signed in contemplation of marriage, was not made in consideration of marriage; but that they had previously mutually agreed and promised to marry one another for the sole consideration of each other's promise to marry, and not for any other consideration whatever." That at the time of signing the contract William H. Forwood was a man 60 years of age, and of large business experience and skill, and owned about $70,000 worth of property--mostly real estate; and that she was only 22 years of age, and of no business experience, and owned no property, and had no expectation of inheritance, except from her father and mother, whose estate, which consisted of real estate, did not exceed $15,000 in value, to be divided among five children; that the contract was presented to her for signature while they were on their way to Shepherdsville to be married; and that the same was signed and acknowledged by her after her arrival at Shepherdsville; that she and William H. Forwood, at the time said contract was signed, both resided in the city of Louisville--she residing with her father and mother; that he induced her to keep their intention to marry a secret from her family and friends, and to go with him to Shepherdsville, and to be married there; that she had no acquaintances or friends in Bullitt county with whom she could consult about the propriety of signing the contract, and that William H. Forwood induced her to sign it without having any of her friends to consult, except himself, so that she could act intelligently and advisedly in reference to the propriety of signing the contract; that his conduct was planned and carried out with the intent to overreach her; that the contract was unreasonable, unfair, unjust, and was obtained by covin and misrepresentation.

In order to settle the rights of the parties to this controversy, it is first necessary to determine the nature of the antenuptial agreement made between the appellee and her husband, William H. Forwood. At common law, by the marriage the wife acquired the right to be endowed of one-third of the lands of which her husband was seized in fee at the time of marriage or during coverture. There is a class of cases which hold that a woman cannot by antenuptial contract legally dispose of her right to dower in her intended husband's lands, because, first, she cannot contract away or release a right before it has accrued; second, that no right or title to a freehold could be barred by a collateral satisfaction. This class of cases therefore holds that such a contract is not enforceable at law, because it has no legal existence; but it is an executory, equitable agreement, which a court...