Frazer v. Andrews

• Decision Date: 04 June 1907
• Citation: 112 N.W. 92,134 Iowa 621
• Parties: FRAZER ET AL. v. ANDREWS ET AL.
• Court: Iowa Supreme Court

134 Iowa 621

112 N.W. 92

FRAZER ET AL.

v.ANDREWS ET AL.

Supreme Court of Iowa.

June 4, 1907.

Appeal from District Court, Henry County; James D. Smythe, Judge.

Action to partition certain real estate. Defendant Eliza D. Smith filed a demurrer to plaintiff's petition in so far as plaintiffs, except Albert Frazer, therein claimed more than one-seventh of two-thirds of the real estate, and to the petition of said Frazer in so far as he claimed more than two-sevenths of two-thirds of the real estate. This demurrer was overruled, and, said Smith electing to stand thereon, judgment was entered as prayed in plaintiff's petition. Smith appeals. Reversed.W. F. Kopp, for appellants.

Babb & Babb, for appellees.

DEEMER, J.

Plaintiffs are the children of Mary M. Coffin, formerly Mary M. Frazer, who died intestate August 2, 1904, leaving surviving seven children, five of whom are plaintiffs and two, Eliza D. Smith and Alson G. Frazer, are defendants. Before the bringing of the suit Alson G. Frazer had conveyed his interest in his mother's estate to plaintiff Albert H. Frazer. It is alleged that each of said children was entitled to an undivided one-seventh of the real estate of their mother, save Albert Frazer, who was entitled to two-sevenths. It is also alleged that Mary M. Coffin left surviving her husband, John M. Coffin, who soon thereafter also died intestate, leaving a number of children and grandchildren, all of whom are made defendants; they being his children and grandchildren by a former marriage. All of said children and grandchildren, save Alice Randolph, had prior to the beginning of this suit transferred their interests to defendant and appellant Eliza D. Smith. It is alleged that neither John M. Coffin nor his heirs had any interest in the land in suit. We now quote the following from the petition which goes to the very vitals of the controversy: “That the said Mary M. Frazer and the said John M. Coffin were intermarried to each other on August 26, 1896, that at said time each of said parties were of advanced years, and each had a number of children by a former spouse, and also that each was the owner of certain real and personal property; that the real estate in question was then owned by the said Mary M. Frazer; that they were each desirous that neither should acquire any right or interest in the property of the other, and they agreed in parol prior to their marriage that each of them should hold absolutely all the real and personal property owned by each of them, respectively, at the time of their marriage, free from any right, claim, dower, homestead, distributive share, or other interest in the property of the other, and that upon the death of either of them the children of such deceased one should take all the property of the one so dying, free from any claim, right, or interest of any kind of the survivor of said two named parties; that said agreement was made in consideration of said contemplated marriage and of their mutual relinquishment of their rights in the property of the other; that subsequent to said agreement and in pursuance thereof the said parties intermarried on August 27, 1896, and that after their marriage, for the purpose of preserving the written evidence of said oral agreement made before their said marriage and to carry the same out, they reduced said agreement to writing as evidence of said oral agreement so made by them before their marriage.” The written agreement referred to, which was executed March 29, 1897, was signed by Mary M. Coffin and John M. Coffin, witnessed by two disinterested persons, and reads as follows: “This article of agreement made and entered into by and between Mary Coffin and John Coffin, her husband, of the county of Henry and state of Iowa, do each of them agree to relinquish to the other and their heirs all their rights, title, interest, in the real estate owned by each of them at the time of their marriage, 27th day of eighth month, 1896, as either one would heir according to law as husband and wife.”

The demurrer challenges the claims made under and in virtue of these agreements, because the oral one is void under the statute of frauds and the written one is void under section 3154 of the Code prohibiting such contracts between husband and wife. It challenges all claims made in virtue of these agreements. Our statute of frauds expressly provides that all contracts made in consideration of marriage must be in writing and signed by the party to be charged; and it also provides that those for the creation or transfer of any interest in land must also be in writing and signed as above provided. Section 3154 provides that, when property is owned by husband or wife, the other has no interest therein which can be the subject of contract between them. It is perfectly plain that the oral contract made before marriage by and between Mary M. Frazer and John M. Coffin, which was in parol was and is of no validity and the consummation of the agreement to marry by ceremonial or other marriage, did not make the contract good. Section 4626 of the Code, relating to the effect of part performance, does not apply to contracts made in consideration of marriage. Again under section 3154 the written contract between these parties, which was concededly made after marriage, was of no validity, as it is expressly forbidden. We have held, however, that if after the making of a parol antenuptial agreement the parties after marriage reduce it to writing, and in the writing recognize and put in force and give effect to the previous parol one, the written one will be given effect as an antenuptial, and not a postnuptial, one. See Kohl v. Frederick, 115 Iowa, 517, 88 N. W. 1055. The present case involves a somewhat different question, in that there is nothing in the writing itself which shows that it was executed to give effect to and make of writing a previous parol antenuptial agreement. In such cases the authorities from other states are in hopeless conflict, and we have not heretofore had occasion to pass upon the subject. Among those cases holding such an instrument good are Moore v. Harrison, 59 N. E. 1077, 26 Ind. App. 408;Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328; Cooper v. Wormold, 27 Beav. 266; Argenbright v. Campbell, 3 Hen. & M. (Va.) 144. To the contrary are McAnnulty v. McAnnulty, 120 Ill. 26, 11 N. E. 397, 60 Am. Rep. 552;Powell v. Meyers (Ky.) 64 S. W. 428;Smith v. Greer, 3 Humph. (Tenn.) 118;Borst v. Corey, 16 Barb. (N. Y.) 136.

In view of this conflict in the cases, it is manifest that apparently sound reasons may be given for either conclusion. We quote the following from Moore v. Harrison, supra: “Antenuptial contracts are favored by the law. They adjust property questions and promote domestic happiness. In such contracts no formality is required, and a liberal construction will be given them in every case, giving effect, if possible, to the intention of the parties. Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328;Kennedy v. Kennedy, 150 Ind. 636, 50 N. E. 756;McNutt v. McNutt, 116 Ind. 545, 19 N. E. 115, 2 L. R. A. 372. The rule is well established that parties contemplating marriage may orally agree as to the disposition of their property, and they may confirm such agreement in writing after marriage. Buffington v. Buffington, supra; Claypool v. Jaqua, 135 Ind. 499, 35 N. E. 285. Such contracts are upheld in equity (Leach v. Rains, 149 Ind. 152, 48 N. E. 858), and it is not necessary to their validity that anything should have...