Hinkle v. Hinkle

• Decision Date: 13 September 1890
• Citation: Hinkle v. Hinkle, 34 W.Va. 142, 11 S.E. 993 (W. Va. 1890)
• Parties: HINKLE v. HINKLE et al.
• Court: West Virginia Supreme Court

11 S.E. 993

34 W.Va. 142

HINKLE v. HINKLE et al.

Supreme Court of Appeals of West Virginia.

September 13, 1890

Submitted September 4, 1890.

Syllabus by the Court.

1.An antenuptial contract, entered into by a woman on the eve of marriage, is as follows:

"This indenture, made this 20th day of June, in the year of our Lord one thousand eight hundred and seventy-six, between Michael H. Hinkle, of the county of Pendleton, in the state of West Virginia, party of the first part, and Hannah H Ketterman, of the same county and state, party of the second part: Whereas, a marriage is intended to be solemnized between us, (Michael H. Hinkle and Hannah H Ketterman,) and in consideration of such intended marriage we(Michael H. Hinkle and Hannah H. Ketterman) do make and enter into the following agreements: The said Michael H. Hinkle being possessed of a tract of *** acres of land, lying on the waters of the North Fork, on the east side of the river, joining the lands of S. P. Priest, P. Sponangle, and H Bennett, as well as much personal property, said land being conveyed by Abram Hinkle and wife to Michael Hinkle by deed bearing date the ___ of ___, 187___, and of record in the clerk's office of the county court of Pendleton county.The said Hannah H. Ketterman hereby bargains and agrees with the said Michael H. Hinkle that she(the said Hannah H. Ketterman) hereby agrees to waive and relinquish forever all such right, title, or interest in and to any part of the estate, both personal and real, or the proceeds of the sales of either or both of which the said Michael H. Hinkle is now or may hereafter come into possession or acquire.She(the said Hannah H. Ketterman) further agrees and binds herself never to claim or to demand at law, or otherwise, as she(the said Hannah H. Ketterman) would acquire and be entitled to in the estate of the said Michael H. Hinkle after intermarriage with him, (the said Michael H. Hinkle,) any part of his (the said Michael H. Hinkle's) estate or property by reason of the solemnization of marriage between us, (the said Michael H. Hinkle and the said Hannah H. Ketterman.)It is further agreed and expressly *** by and between us(the said M. H. Hinkle and the said Hannah H. Ketterman) that she(the said Hannah H. Ketterman) shall never in the future acquire any property, rights, interest, or titles in or to any part of the estate of the said Michael H. Hinkle further than he(the said Michael H. Hinkle) may convey to her (the said Hannah H. Ketterman) by deed of gift, or by will.It is further expressly agreed between us (the said Michael H. Hinkle and the said *** that he(the said Michael H. Hinkle) shall, at all times during his life-time, have the right independent of me (the said Hannah H. Ketterman) to sell or convey any part or all of his real estate, make a deed, and convey a perfect title, to the same without my (the said Hannah H. Ketterman's) consent, or my name and acknowledgment, as his wife, to such deed of conveyance, but his (the said Michael H. Hinkle's) deed shall in all respects be as perfect, and have the same effect, and convey the title as perfectly to any part of the real estate, as if no marriage existed between us, without my consent or acknowledgment, as his wife, with him to such deed.

"Witness our hands and seals.

"M. H. HINKLE.[Seal.]

"HANNAH H. x (her mark) KETTERMAN.[Seal.]

"The state of West Virginia, Pendleton county, to wit: This day personally appeared the parties whose names are signed to the writing within, and acknowledged the same to be their acts, and did not wish to retract it.Given under my hand this 30th day of June, 1876.JOHN W. DOLLY, Justice.

"In the clerk's office of the county court of Pendleton Co., June 4th, 1877.This marriage contract between Michael H. Hinkle and Hannah H. Ketterman was presented, and, with the certificate of acknowledgment, admitted to record.Teste: ANDY DYER, C. P. C.A copy.Attest: I. P. BOGGS, Clerk."

Held, this contract does not either expressly or by necessary implication, cut off and bar her right of dower, should she survive her husband.Beard v. Beard,22 W.Va. 130.

2.Our Code having provided that "if any estate, real or personal, intended to be in lieu of her dower, shall be conveyed or devised for the jointure of the wife, such conveyance or devise shall bar her dower of the real estate or the residue thereof.But if such conveyance or devise was before the marriage, without the assent or during the infancy of the feme, or if it was after marriage, in either case, the widow may, at her election, waive such jointure, and demand her dower."It seems that an antenuptial contract made by an illiterate woman, who cannot write her name, with a man of substance to whom she is engaged, whereby, without any provision for her, by way of jointure or otherwise, and without any reciprocal engagement by the prospective husband, she should agree to relinquish all right as dowress or distributee in his estate, will not be enforced in a court of equity as a bar to dower, unless it is proved to have been read and explained to her, and to have been entered into without undue influence upon the part of the prospective husband.Should such contract make a fair, equitable, and reasonable provision for her, the case would be otherwise.

Appeal from circuit court, Pendleton county.

Geo. A. Blakemore, for appellant.

E. A. Cunningham, for appellee.

LUCAS J.

This case comes up on an appeal from a decree of the circuit court of Pendleton county, in a chancery cause, in which the appellant, Hannah Hinkle, was complainant.The object of her bill was to have her dower assigned her in the real estate of her deceased husband, who she alleges died intestate, seised of certain real estate; and had certain children as his heirs surviving him, who are named as defendants.The defendants for answer set up an antenuptial contract by which, it is claimed, the plaintiff before her marriage had relinquished upon the consideration of marriage, all of her right, title, and interest in and to any part of the real or personal estate of her prospective husband.The contract is exhibited with the bill, but no evidence is offered to prove the circumstances under which it was executed.No depositions were taken upon either side, and the issue was made up on the construction and effect of the antenuptial agreement.The court below on the 17th of April, 1888, entered a decree dismissing the bill on the ground that the complainant had relinquished or waived for a valuable consideration all her right to dower in the land of which her deceased husband died seised.It is from this decree that an appeal has been allowed.The preamble to the agreement is as follows: "This indenture, made this 30th day of June, in the year of our Lord one thousand eight hundred and seventy-six, between Michael H. Hinkle, of the county of Pendleton, in the state of West Virginia, party of the first part, and Hannah H. Ketterman, of the same county and state, party of the second part: Whereas, marriage is intended to be solemnized between us, (Michael H. Hinkle and Hannah H. Ketterman,) and, in consideration of such intended marriage, we(Michael H. Hinkle and Hannah H. Ketterman) do make and enter into the following agreements: The said Michael H. Hinkle being possessed of a tract of *** acres of land, lying on the waters of the North Fork, on the east side of the river, joining the lands of S. P. Priest, P. Sponangle, and H. Bennett, as well as much personal property, said land being conveyed by Abram Hinkle and wife to Michael Hinkle by deed bearing date the ___ of ___ 187 ___, and of record in the clerk's office of the county court of Pendleton county."The first sentence then proceeds, (I have numbered the clauses for convenience of reference:)(1)"The said Hannah H. Ketterman hereby bargains and agrees with the said Michael H. Hinkle that she(the said Hannah H. Ketterman) hereby agrees to waive and relinquish forever all such right, title, or interest in and to any part of the estate, both personal and real, or the proceeds of the sales of either or both of which the said Michael H. Hinkle is now or may hereafter come in possession or acquire."It is impossible to say that this relinquishment does necessarily amount to a waiver of dower, which it is defined to be.(2)"She(the said Hannah H. Ketterman) further agrees and binds herself never to claim or demand at law, or otherwise, as she(the said Hannah H. Ketterman) would acquire and be entitled to in the estate of the said Michael H. Hinkle after intermarriage with him (the said Michael H. Hinkle) any part of his (the said Michael H. Hinkle's) estate or property, by reason of the solemnization of marriage between us, (the said Michael H. Hinkle and the said Hannah H. Ketterman.)"Here again the language does not necessarily import a waiver of dower, which is not, as our law now stands, a necessary acquisition "by reason of the solemnization of marriage;" it depends upon the further fact of survival of the wife after the husband's death; a contingency which this clause does not seem to contemplate or provide for.It is further agreed: (3)"It is further agreed and expressly *** by and between us(the said M. H. Hinkle and the said Hannah H. Ketterman) that she, (the said Hannah H. Ketterman) shall never in the future acquire any property, rights, interests, or titles in or to any part of the estate of the said Michael H. Hinkle further than he(the said Michael H. Hinkle) may convey to her (the said Hannah H. Ketterman) by deed of gift, or by will."This clause of the agreement binds the contracting female on the eve of marriage not to renounce any postnuptial settlement by way of jointure, (which under our...