Hosmer v. Hosmer, 11607

• Decision Date: 19 December 1980
• Docket Number: No. 11607,11607
• Parties: In re Estate of John E. HOSMER, Deceased, Madalyne Hosmer, Appellant, v. Thomas Robert HOSMER, Douglas Andrew Hosmer, Sarah Abagail Hosmer, Julia Nancy Hosmer, John David Hosmer, Jane Hosmer, Kent Hosmer, Mary Hosmer, Ann Hosmer, Stephen Hosmer, Craig Hosmer, Ellen Hosmer and Joe Hosmer, Respondents.
• Court: Missouri Court of Appeals

Page 32

611 S.W.2d 32

In re Estate of John E. HOSMER, Deceased, Madalyne Hosmer, Appellant, v. Thomas Robert HOSMER, Douglas Andrew Hosmer, Sarah Abagail

Hosmer, Julia Nancy Hosmer, John David Hosmer, Jane Hosmer,

Kent Hosmer, Mary Hosmer, Ann Hosmer, Stephen Hosmer, Craig

Hosmer, Ellen Hosmer and Joe Hosmer, Respondents.

No. 11607.

Missouri Court of Appeals, Southern District, Division One.

Dec. 19, 1980.

Rehearing Denied Jan. 12, 1981.

Scott R. Traylor, Raymond A. Morwood, Springfield, for appellant.

John W. Sims, Haymes, Sims & Thompson, Marshfield, John B. Newberry, Springfield, for respondents.

FLANIGAN, Judge.

John E. Hosmer, an attorney, died intestate on June 11, 1978. At the time of his death he owned real estate valued at $105,500 and personal property valued at $18,443.04. After an administratrix had been appointed by the probate division of the Circuit Court of Greene County, his widow, Madalyne Hosmer, filed application for exempt property (§ 474.250), ¹ family allowance (§ 474.260), and homestead allowance (§ 474.290).

The decedent had previously been married to Melba Hosmer. That marriage lasted 29 years and ended by divorce in August 1976. Children of that marriage filed a motion opposing the widow's application. The motion alleged that on December 3, 1977, two days prior to their marriage, Hosmer and Madalyne executed an antenuptial contract which was "supported by valuable consideration given by the decedent to the said Madalyne, (was) signed by said Madalyne, after a full disclosure of the nature and extent of the right which she was giving up, and is a fair consideration under all of the circumstances, and in all respects complies with § 474.120." ² The antenuptial contract, denominated "Marital Agreement," is set out below. ³

After an evidentiary hearing the court entered its order finding that the antenuptial agreement was valid and barred the widow's right "to make any recovery from his estate by virtue of inheritance or the marriage relation." The order denied the three-fold application. The widow appeals.

The widow asserts that the antenuptial agreement was invalid, and the trial court erred in holding otherwise, for several reasons: The agreement did not meet the requirements of § 474.120; the agreement lacked consideration; the decedent did not make a full and fair disclosure to his intended spouse of the nature and extent of his property and of the rights of inheritance and other statutory rights of a surviving spouse; the agreement was signed while she was under duress and while a confidential relationship existed between her and the decedent; she did not understand the legal effect of the agreement when it was executed; and the agreement is contrary to public policy by reason of its provision purporting to prohibit divorce. For the reasons which follow, this court holds that the antenuptial agreement was invalid and that the trial court erred in ruling otherwise.

As its language reflects, § 474.120 applies to both antenuptial and postnuptial agreements but is limited to situations of intestacy. Its counterpart with respect to testate decedents is § 474.220, which also embraces antenuptial and postnuptial agreements. Since 1963 the statutes have been couched in similar, but not identical, language with respect to requirements for the validity of such agreements. With respect to the two statutes, an eminent authority on Missouri probate law has said: "Decisions under either section should be helpful in construing the other. Both sections appear to embody the principles that were being developed by the decisions." Maus, Missouri Practice, Probate Law and Practice, Vol. 4, § 1241.

For a waiver of the rights of inheritance or any other statutory rights of a surviving spouse of an intestate decedent, compliance with § 474.120 requires: (a) a written contract to waive such rights; (b) prior full disclosure of the nature and extent of the rights, including the nature and extent of all property interests of the parties; (c) the giving to the waiving party of a thing or promise which is a fair consideration under all the circumstances.

Some of the principles which are germane to the disposition of this appeal are expressed in Estate of Youngblood v. Youngblood, 457 S.W.2d 750 (Mo.banc 1970). They are stated in the next paragraph.

The rules governing the validity of an antenuptial agreement, of the type under consideration, are unique and are distinct from the requirements for the execution of an ordinary contract. The statutory requirement that there be a fair consideration under all the circumstances "not only requires that there be such consideration as would support a simple contract, but further that the consideration moving to the spouse or prospective spouse surrendering marital rights be fair and equitable in the particular circumstances." The fairness of the agreement must be determined as of the date of the agreement. So long as the surviving spouse had full knowledge, actual or constructive, of the other's property and the survivor's rights therein, the agreement is not invalid merely because the provision for the waiving survivor is less than the survivor would have received in the absence of the agreement. Although reciting the property holdings, or listing them separately, may be advisable from the drafting standpoint, the absence thereof is not necessarily fatal to the agreement. Determination of the sufficiency of the disclosure or equivalent knowledge is usually dependent upon the circumstances of the case. The ultimate inquiry is whether the surviving spouse against whom enforcement of the agreement is sought has been defrauded or overreached.

When the validity of a waiver agreement is to be tested by whether it meets the requirements of § 474.120, an issue arises with respect to the burden of proof. Does the spouse, who allegedly waived, have the burden of proving the invalidity of the agreement or do those who rely upon the agreement have the burden of proving its validity? Of course the contents of the instrument itself may facilitate or hamper the carrying out of that burden, wherever it may lie. The Missouri cases are not wholly in accord on the question.

In Donaldson v. Donaldson, 240 Mo. 228, 155 S.W. 791, 797 (Mo.1913), it is said, "(T)he relation of a man to a woman he is about to marry is a confidential one in an exacting and stringent sense. In fact, none is more so. He carries the burden of showing that any antenuptial contract entered into under the glow and trust of that tender and trust relation was made fairly and understandingly on full disclosures, and is just and adequate." In Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 894 (1931) the court said, "Ordinarily, inadequacy raises a presumption of fraud and concealment, throwing the burden of proving the absence of fraud and concealment upon the husband or those claiming under him..."

On the other hand, in McQuate v. White, 389 S.W.2d 206 (Mo.1965), where a widow sought a declaratory judgment decreeing the invalidity of an agreement, apparently postnuptial, the court said, at p. 212, "The burden of making a showing that the agreement is unfair is naturally on the party seeking to invalidate it." That language was quoted by this court in Matter of Estate of Soper, 598 S.W.2d 528, 537 (Mo.App.1980). ⁴

Where, as here, the existence of an antenuptial agreement is pleaded as a defense to rights which a widow otherwise would have, and the persons relying upon the agreement claim that it complies with § 474.120, it seems reasonable that the burden of proving the validity of the agreement should be upon them. Mere introduction of a written agreement, although duly signed, would not alone satisfy that burden. The other factors of full disclosure and fair consideration, at least unless prima facie evident on the face of the instrument, must also be shown; otherwise the agreement falls short of satisfying the statute.

Whatever the rule may be with regard to the burden of proof, the instant record does not require resolution of the problem for the reason that if the burden lay upon the movants to establish validity, they failed to do so, and if the burden lay upon the widow to establish invalidity, the manner in which the instant record was made achieves that result.

Exercising the privilege granted them under § 491.030 to cross-examine the widow as an adverse witness, the movants, through their counsel, placed her on the stand. In so doing movants bound themselves by her direct testimony to the extent that it was uncontradicted or was the only evidence on the point. Taylor v. Riddle, 384 S.W.2d 569, 574(3) (Mo.1964); Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658, 659(2) (1941); Stringer v. Reed, 544 S.W.2d 69, 74(8) (Mo.App.1976); Frazier v. Stone, 515 S.W.2d 766, 769(13) (Mo.App.1974). Movants were not bound by the testimony of the widow elicited on cross-examination by her own counsel. Frazier, supra, at 770.

On direct examination the widow testified that she and decedent commenced living together in the latter part of July 1976, and in February 1977 she became his legal secretary. She and decedent were married on December 5, 1977. At one time they lived in an apartment above the Daily Events building and they also lived together in the Midtown Law Office. According to the brief of movants as respondents here, the two buildings referred to were "the chief asset of the estate and composed 99 percent of the estate." The widow conceded that the agreement was signed by the decedent and by her a day or two prior to the marriage.

Movants' counsel posed this question to the widow, "Were you familiar with the property that he owned?" Her answer was, "No. I was not." When counsel asked the widow whether she knew that decedent owned the Midtown Law Office her reply was, "No, I did not know that he owned it. I knew that he owed a lot of money on it." When asked whether she knew that decedent...