Gordon v. Munn

• Decision Date: 09 November 1912
• Docket Number: 17,725
• Parties: JENNIE S. GORDON, Appellee, v. LILLIE GORDON MUNN et al., Appellants
• Court: Kansas Supreme Court

127 P. 764

88 Kan. 72

JENNIE S. GORDON, Appellee, v. LILLIE GORDON MUNN et al., Appellants

No. 17,725

Supreme Court of Kansas

November 9, 1912

Decided July, 1912.

Appeal from Shawnee district court. Opinion denying a rehearing filed November 9, 1912. Former decision adhered to. (For original opinion, see 87 Kan. 624, 125 P. 1.)

Petition for rehearing denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. REHEARING DENIED--Statements in Opinion Modified. Criticisms of the opinion (87 Kan. 624, 125 P. 1) in this case are considered, and certain statements therein modified.

2. ANTENUPTIAL CONTRACT -- Construction -- Conveyance. The antenuptial contract considered in this action should be construed according to the intention of the parties to be gathered from the entire instrument, the nature of the property to be conveyed, and the effect of the agreement in vesting the equitable title in the wife. So considered it is held that a conveyance by the husband was not indispensable to its enforcement in the circumstances disclosed by the evidence and findings.

James A. Troutman, D. R. Hite, Robert Stone, David W. Mulvane, C E. Gault, and George T. McDermott, all of Topeka, for the appellants.

S. H. Allen, Otis S. Allen, and J. B. Larimer, all of Topeka, and A. E. Crane, of Holton, for the appellee.

OPINION

OPINION DENYING A REHEARING.

BENSON, J.:

A statement in the opinion that the rents and profits of the property set apart to the wife by the antenuptial contract had been absorbed by taxes is challenged in a petition for rehearing. On reexamining the evidence it is found that although the taxes upon one of the tracts exceeded the rent, the reverse is true of the other parcel. Concerning this subject the appellee's brief contained the following:

"The North Topeka property produced a little income and was worth in 1898 about $ 1800, but, at the time of the death of Mr. Gordon, by reason of the flood and the decay of the buildings it was worth $ 600 or $ 800. The 7 1/6 acres never produced any revenue over and above the amount of the taxes. It was worth $ 1000 to $ 1500 in 1898 and from $ 2500 to $ 2800 in 1908. At the time of the death of Mr. Gordon the two properties did not produce any net revenue whatever."

Elsewhere in the brief it is stated that the North Topeka lot rented for about $ 8 per month. It was also stated that it was difficult and much of the time impossible to collect rent for the old house on this lot, and there was some difficulty in collecting rents from the barn. One tenant was dispossessed for failure to pay rent and another tenant was allowed a rebate for ten months or a year for repairs made necessary by a flood. The tax upon the North Topeka lot for one of the years was $ 27.67. The evidence does not show the exact amount of net revenue from both tracts. The statement referred to in the opinion appears to be too broad, but the surplus received from rents in excess of taxes, repairs and expenses was not so great as to affect the conclusion reached by the court.

Another statement in the opinion is criticized. It was said that:

"In many of the cases holding that such an agreement thus remaining unexecuted does not bar the widow's dower or inheritance, the inexperience of the wife, her want of adequate knowledge of the husband's property or other equitable considerations appear to have influenced the judgment." (Gordon v. Munn, 87 Kan. 624, 633, 125 P. 1.)

It is said that no case can be found supporting this statement. In Sarah Woodward v. Benjamin Woodward et al., (5 Sneed) 37 Tenn. 49, cited by appellee, the statement of facts shows that the complainant was illiterate, that it was doubtful whether the paper was read to her, and that it was executed in great haste. The property to be transferred to the wife consisted of two slaves; such transfer was not made, and upon the death of the husband it was held that the widow might hold her legal rights in the estate of her husband notwithstanding the agreement, but the court said:

"The defendants, in this case, have not put themselves in an attitude, by filing a cross-bill, to ask a decree for specific execution of the agreement, if entitled to do so. But it is clear they have no such relief; the suspicions of unfairness which surround the execution of the paper, would repel them from a Court of Equity." (p. 56.)

In Pierce v. Pierce, 71 N.Y. 154, a case also relied upon by the appellee, a decision had been rendered by the supreme court of that state reported in 9 Hun 50, holding that the wife was not bound by an antenuptial agreement of her husband to settle upon her a sum of money because he had failed to make the settlement in his lifetime. In reviewing this decision the court of appeals of New York affirmed the judgment, for the reason, however, that the intended wife had been defrauded. No reference was made to the failure of the husband to complete the settlement as agreed. In Slingerland v. Slingerland, 115 Minn. 270, 132 N.W. 326, it appeared that the district court had held the antenuptial contract void because of inadequacy of consideration and the failure of the husband to make the payment as agreed, but that it was not invalid by reason of any fraudulent representations or undue influence. It appeared that the husband was over sixty years of age and was a wealthy and successful business man. The wife was only 23 years old. Other circumstances affecting her situation were commented upon and it was held, contrary to the views of the trial court, that the contract should be set aside for fraud and undue influence, and the court added that "It is unnecessary to decide whether defendant's failure to pay the $ 5000 is alone a ground for setting the contract aside." (p. 275.) These cases may serve to illustrate what was in the mind of the writer of the opinion in this case in making the statement now challenged, and at least indicate the desire of courts to rest their decisions in such cases upon the ground of fraud rather than the default of one of the contracting parties. In Russell v. Russell, 129 F. 434, also cited by the appellee, the failure of the husband to perform a promise made in the antenuptial contract was held to be in itself a fraud relating back and vitiating the agreement in which it was contained. This may not be solid ground, but it further illustrates the judicial effort to base decisions in such cases upon fraud if it appears, rather than upon failure to fulfill a promise. The statement quoted above may be regarded as eliminated. It was a mere passing remark, having but a remote bearing upon but not necessary to the decision.

Inadequacy or disproportion of the consideration to be given to the wife was pleaded in the sixth paragraph of the reply. Attention was called to this feature of the case in a question submitted upon reargument, and it was fully treated in the briefs. This is believed to be a sufficient reason for the consideration given to it in the opinion of which complaint is now made.

It is suggested that the exclusion of evidence referred to in the sixth paragraph of the syllabus is not a ground of reversal because the proffered evidence was not set out in the motion for new trial. An examination of the opinion will disclose the fact that this evidence was considered because a new trial was ordered of the issue to which it related. It would be unfair to both parties to remain silent upon a matter of this nature where the same question is likely to be presented in another trial. It was fully argued in the briefs.

The vital question presented in the petition for rehearing is the effect of the failure of the husband to make the conveyance as agreed. Many authorities are again cited holding that such a failure is fatal and it is asserted that none can be found to the contrary. That such authorities upon the general proposition were not wanting was stated in the opinion, but it may be useful at this time to reexamine some of them. In Bliss v. Sheldon, (N.Y. Supr. Ct.) 7 Barb. 152, a case frequently cited in later decisions, the agreement was to provide by last will for the widow an allowance of $ 50 each year during her natural life, together with a room in the dwelling house, household furniture and garden, in lieu of dower. The will afterwards made provided for the payment of an annuity, not for life as promised, but during widowhood only. The court said that "By disposing of the entire remainder of his property, he (the husband) rendered it impossible for his executors to perform it." (p. 156.) It is true that another ground for the decision was added, but the fact that the agreement was impossible of performance is significant. In the same case, reviewed in 8 N.Y. 31, the court said:

"The agreement was not performed by the testator, who not only omitted to make the provision contemplated by the contract for the respondent, but so disposed of his estate by his will as to place it beyond the power of his executors to make such provision, without departing from his instructions. It is idle to talk of the wife being bound by an agreement which the husband in his lifetime virtually repudiated." (p. 35.)

Thus it will be seen that the court of appeals rested its decision not alone upon nonperformance, but upon repudiation of the agreement by the husband as well as impossibility of performance by the executors.

In Camden Mutual Insurance Association v. Jones, 23 N.J.Eq. 171, the agreement provided for an annuity for the wife during widowhood. The husband died insolvent. The court said:

"It seems settled, both upon principle and by authority, that an ante-nuptial contract to release or not to claim dower, in consideration of an annuity or a provision out of personal property covenanted to be provided in lieu...