In re Estate of Waller
| Decision Date | 24 January 1928 |
| Docket Number | 24823 |
| Citation | 217 N.W. 588,116 Neb. 352 |
| Parties | IN RE ESTATE OF JAMES A. WALLER. v. CHARLES T. DICKINSON, ADMINISTRATOR, APPELLANT FRIDA WALLER, APPELLEE, |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Affirmed as modified.
AFFIRMED AS MODIFIED.
Charles T. Dickinson, pro se.
J. J Friedman, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
James A. Waller and Frida Durkran, both over 60, were married June 1, 1922, and from thence for about a year they lived together in Omaha. Both of the parties had been married before and both had children by the former marriage. December 31, 1923, Mrs. Waller obtained a decree of divorce on the ground of extreme cruelty, and under the decree of divorce the defendant paid $ 1,000 to her as alimony and all the costs and $ 150 as counsel fees. All payments were made within the time designated in the decree. The court decreed, however, that the alimony, when paid, "shall be in lieu of all dower or other right which the plaintiff has or claims to have in the defendant's property." February 12, 1924, or less than two months after the decree of divorce was rendered, James Waller died. The plaintiff now contends that she is entitled to a widow's share of the Waller estate which, as shown by a stipulation, is of the approximate value of $ 22,000.
By his former marriage Waller had only two children, namely, Mrs. Bell Miller, 42, and Mr. James E. Waller, 40, both residents of Anton, Colorado. Charles T. Dickinson, as administrator, contends that the above-named daughter and son of Waller are the decedent's sole heirs at law and are entitled to all of the Waller estate, and that Mrs. Waller, the plaintiff, is entitled to no part of the estate except that which she had already recovered in the divorce suit. The county court found against the administrator and he prosecuted an appeal to the district court.
On appeal the judgment of the county court was affirmed, and under a decree dated March 19, 1925, the plaintiff was allowed to participate in the distribution of the estate in the following amounts namely, $ 100 a month for support for one year from the date of Waller's death, and $ 500 in lieu of homestead, and $ 200 in lieu of personal property. The court also found that the plaintiff "was entitled to her distributive share in the property of the deceased as his widow." From the decree of the district court, the defendant administrator has prosecuted an appeal to this court.
The record discloses an antenuptial contract which was executed by the parties. From this instrument it is made to appear that, if Waller's wife survived him, she should be paid from his estate $ 1,000 within six months after his death in full of all rights of dower, distributive share or other interest in and to his estate.
The defendant, Charles T. Dickinson, designated as the "administrator with the will annexed" of the Waller estate, directs attention to the fact that the antenuptial agreement in express terms also provides that, if either party should obtain a divorce or if the plaintiff should refuse to live with him as his wife, the provision therein made for the payment of $ 1,000 to her shall be null and void, and that Waller's estate shall be thereby relieved from such payment or any part thereof. The administrator admits the marriage, but pleads the fact that the divorce was granted December 31, 1923, and insists that the decree became final the 30th day of June, 1924, and that the applicant is not, therefore, the widow of the decedent.
Clearly the argument of counsel is not sound in respect of the finality of the decree. Under the facts and the law, the decree could not become final until the expiration of six months after the rendition of the decree of divorce. Section 1555, Comp. St. 1922, so far as applicable to the facts before us, among other provisions, contains this: "A decree of divorce shall not become final or operative until six months after trial and decision." In the present case Mr. Waller died less than two months after the divorce decree was rendered. Under our decisions in like cases, the plaintiff, by reason of the death of Waller within six months after the divorce, became restored to all her marital and property rights in Waller's estate, and from the fact that the decree of divorce never became final she is the surviving widow of the decedent.
True, the plaintiff signed the antenuptial agreement, but the court found that it was procured by fraud and the evidence supports the finding. The antenuptial agreement consists of more than two full pages of legal cap, and was written in English. Plaintiff, then a recent arrival from Germany, could neither read nor write nor understand the English language and did not know what her lawful marriage rights were at the time. She testified that counsel for Mr. Waller read the contract to her, but that she understood no part of what he read nor what they were talking about. The language of the agreement is somewhat involved and intricate and to a layman it would perhaps be in part meaningless. When interrogated in respect of the time when she was told about the contents of the contract, plaintiff answered:
The antenuptial agreement appears to be unfair and unjust in its provisions as they affect the marital rights of Mrs. Waller. The weight of the evidence sustains this view. In cases in this class the rule is that it is the court's bounden duty to carefully examine the contract and see that no injustice is done...
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