Herr v. Herr
| Decision Date | 09 June 1920 |
| Docket Number | 1915 |
| Citation | 178 N.W. 443,45 N.D. 492 |
| Court | North Dakota Supreme Court |
Appeal from a judgment of the District Court of McIntosh County, F P. Allen, J.
Affirmed.
Judgment affirmed. Respondent entitled to costs and disbursements on appeal.
H. W Platt, G. M. Gannon, and A. A. Ludwigs, for appellant.
An intended wife may, by an antenuptial agreement, release her claim or right to the statutory allowance given to widows out of their deceased husband's estate. 13 R. C. L. 1013; Kroell v. Kroell, 219 Ill. 105; Houghton v Houghton, 14 Ind. 505; Rieger v. Schnaible, 81 Neb. 33.
The homestead right of one spouse in the real estate of the other, on the latter's death, may be barred by antenuptial contract. 13 R. C. L. 1014; Appleby v. Appleby, 100 Minn. 408.
If the husband was induced to contract the marriage on the strength of the wife's signature to an antenuptial contract, fairly obtained from her, she should be compelled to execute the agreement, and be estopped from claiming further out of her deceased husband's estate than is provided in the contract. Zachmann v. Zachmann, 201 Ill. 330, 94 Am. St. Rep. 180; Kroell v. Kroell, 219 Ill. 105, 76 N.E. 63; 16 Cyc. 390.
It is the cardinal principle tat marriage settlements, executory in their nature, ought to be construed and molded in equity according to the intention of the parties citing. Brown v. Slater, 16 Conn. 192, 41 Am. Dec. 136; May v. May, 7 Fla. 207, 68 Am. Dec. 431; Collins v. Phillips, 259 Ill. 405; McLeod v. Board, 30 Tex. 238, 94 Am. Dec. 301; Bank of Greensboro v. Chambers, 30 Grat. 202, 32 Am. Rep. 661; Diller v. Diller, 141 Wis. 255, 124 N.W. 278.
I. A. Mackoff, John E. Burke, and W. S. Lauder, for respondents.
It is the public policy of this state that wholesome exemption laws shall be enacted for the benefit of widows, orphans, and the poor and unfortunate generally. N.D. Const. § 208, Comp. Laws 1913, §§ 7729-7743.
"The waiver of a right of exemption before the appropriate time for claiming it is absolutely void." 9 Cyc. 480; Maxwell v. Reed, 7 Wis. 582; Crum v. Sawyer, 132 Ill. 466, 24 N.E. 956; Mandan Mercantile Co. v. Sexton, 29 N.D. 602, 151 N.W. 780, Ann. Cas. 1917A, 67; Arnegaard v. Arnegaard, 7 N.D. 475; Meyer v. Meyer (S.D.) 127 N.W. 596; Wentworth v. Wentworth, 69 Mo. 247; Mahaffey v. Mahaffey (Iowa) 17 N.W. 46; Re Deller (Wis.) 25 L.R.A. (N.S.) 751 and note; Riggs v. Sterling, 60 Mich. 643, 27 N.W. 705.
Exemption laws manifest a public policy, and therefore all contracts whereby the benefits accruing under such laws are waived are held to be absolutely void. Kneetle v. Newcomb, 22 N.Y. 249; Curtis v. O'Brien, 20 Iowa 376; Moxley v. Ragan, 10 Bush, 156; Maxwell v. Reed, 7 Wis. 582; 18 Cyc. p. 1450 and cases cited under note 31; Thompson, Homesteads & Exemptions, § 440.
This is an action to determine the validity of the judgment appealed from, which set aside to Susanna Munsch Herr, the widow of Jacob Herr, Sr., certain exemptions in the sum of $ 1,500 claimed under Comp. Laws 1913, § 8725.
The material facts, briefly stated, are as follows: Jacob Herr, Sr., died at Wishek, McIntosh county, North Dakota, on the 11th day of December, 1916. At the time of his death he was a resident of that county, and owned real and personal property therein, which, according to the appraisement thereof in the probate proceedings had, aggregated the sum of $ 48,000; and the probability is that it was worth considerable more. There survived the decedent, his widow, Susanna Munsch Herr, and several children and grandchildren, whose names appear in the title of the action, none of which children, however, are the offspring of the decedent and his surviving wife, but are the issue of each by former marriages. Jacob Herr, Sr., and Susanna Munsch Herr, were married July 17, 1913. On that day, and prior to their marriage, they signed a written agreement, which purports to be an antenuptial contract. The parties to this action stipulated that, for the purposes of this proceeding (which is one brought to have the exemptions specified in § 8725 set aside), and for no other purpose, that the antenuptial contract might be considered a binding one. The validity of the contract is in no way determined herein. That question is not in fact, involved in this action, except as the contract is assumed to be legal for the purpose of determining the question with reference to the exemptions under the section above mentioned. It is conceded that Jacob Herr, Sr., and Susanna Munsch Herr, on the day of the marriage and before the consummation of the same, signed a written instrument denominated an antenuptial contract, which, in substance, provided that neither party should take any right, title, or interest in the property of the other; that at the time of their respective deaths the property of each should vest in the respective heirs of each; that neither should take property or property rights in the property of the other; that during the time they lived together as husband and wife they would mutually share and enjoy the rents and profits of their property; that in the event the husband should die first, the surviving wife should have the right of occupancy of the homestead, and, in addition thereto, received $ 2,000 in cash, and no more. Since the death of her husband the widow has continued to occupy the homestead, although the same has not been formally set aside to her by the order of the county court. It is claimed by the appellant that the administrator has tendered to the surviving widow the $ 2,000 mentioned in the contract. She denied this, and claims that the tender was conditional on her releasing all further claim upon her deceased husband's estate, which she refused to do. She maintains that under the law she is entitled unconditionally to the exemption claimed, and that, to have the same set apart to her, she was not required, as a condition precedent, to surrender any other right that she might possess. It is claimed by appellants that the surviving widow's separate property amounted to $ 2,900. She maintains that it is not more than $ 500. The amount thereof is immaterial to a decision of this case. At the time of the marriage Jacob Herr, Sr., was an old man and she was about sixty years of age. The sole question presented in this case is: Was it error in the district court to hold, as it did, that the wife, by signing the antenuptial contract, is not estopped to claim exemptions under the section above mentioned, and that she in no manner thereby waived them? We are of the opinion that the court did not err in this regard.
The actual validity of the antenuptial contract not, in fact being a...
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