In re Oppenheimer's Estate
| Decision Date | 22 June 1925 |
| Docket Number | 5739. |
| Citation | 238 P. 599,73 Mont. 560 |
| Parties | In re OPPENHEIMER'S ESTATE. v. DAVIS et al. OPPENHEIMER |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Proceeding by Cornelia Oppenheimer for statutory allowance for support from the estate of Joseph E. Oppenheimer, deceased, opposed by A. J. Davis, Sr., and others, legatees. From an order denying recovery, petitioner appeals. Affirmed.
Charles R. Leonard, of Butte, for appellant.
William Meyer and Harry Meyer, both of Butte, for respondents.
This appeal involves the construction of an antenuptial agreement to determine whether or not the appellant, widow of Joseph E Oppenheimer, deceased, by its terms waived the right to an allowance for her support, as authorized by sections 10144 to 10147, Revised Codes of 1921, during the progress of the administration of the estate of the deceased.
The facts out of which the controversy arose are, that Joseph E Oppenheimer died on January 31, 1924, leaving a will which was duly admitted to probate in the district court of Silver Bow county, and the respondents A. J. Davis, Sr., Jacob Cohen, and Sigmund Schilling are the executors thereof, while the other respondents are legatees under the will.
On December 1, 1924, the appellant, Cornelia E. Oppenheimer presented her petition in the probate proceedings, reciting that she was the widow of the deceased; that on the 13th and 31st days of May, 1924, separate inventories and appraisements af the estate were duly returned and filed, showing that the property of the estate had been appraised at the sum of $793,963; that the debts of the estate did not exceed the sum of $400,000; that the estate was solvent; that an allowance therefrom was necessary for the support and maintenance of petitioner, and that $750 per month was a reasonable sum in that behalf; and praying that an allowance for that amount be made to her, beginning from the date of decedent's death on January 31, 1924.
To the granting of this petition, the executors and legatees above named filed separate objections and claimed that by virtue of an antenuptial agreement entered into on June 30, 1921, between the petitioner, who was then Cornelia E. Bingham, and the deceased, the petitioner waived the right to claim or receive such an allowance. The petition and objections thereto were regularly heard by the court on December 16, 1924, and taken under advisement. Thereafter, on March 10, 1925, the court made an order denying the petition and ordering the same dismissed. From this order, the petitioner has appealed.
The antenuptial agreement, referred to in the answers of the respondents, had been presented by the petitioner as a claim against the estate, duly allowed and $5,000 paid thereon. This agreement, which for convenience of reference we have paragraphed and numbered, is as follows:
(1) "This indenture made the 30th day of June, 1921, between Joseph E. Oppenheimer, residing at Butte, Mont., party of the first part, and Cornelia E. Bingham, residing at No. 270 Convent avenue, in the borough of Manhattan City, county and state of New York, party of the second part, witnesseth:
(2) Whereas, a marriage is intended to be had between the parties of the first and second part, and the party of the first part is seized and possessed of a large estate; and
(3) Whereas, it is agreed between the parties hereto that the party of the second part is not to have any dower, thirds or right of dower in any real property of which the party of the first part is now or may hereafter become seized, possessed and entitled to; and
(4) Whereas, the party of the first part has agreed to make provisions for the party of the second part in lieu of such dower, and in lieu of any claim that she, as the wife, or upon his death as his widow, or as one of his heirs at law or next of kin, would be seized or possessed or entitled to; and
(5) Whereas, the party of the second part has agreed to accept the sums and payments hereinafter mentioned in full for all claims of dower, or right of dower or thirds that she, the said party of the second part, is entitled to as the wife, or will become entitled to as the widow, or heir at law or next of kin of the party of the first part:
(6) Now, therefore, in consideration of the said intended marriage and of the sum of one ($1.00) dollar to me, the said party of the second part in hand paid, the receipt whereof is hereby acknowledged, I, Cornelia E. Bingham, the said party of the second part, hath granted, remised, released, conveyed and forever quitclaimed, and by these presents do grant, remise, release and forever quitclaim unto the said Joseph E. Oppenheimer, the party of the first part, and to his heirs and assigns forever, all the dower, thirds, right and title to dower, thirds, and of all other rights, title, interest, property, claim and demand whatsoever at law or in equity of me, the said Cornelia E. Bingham, the party of the second part, of, in and to all and every the lands, tenements and real estate whereof the said Joseph E. Oppenheimer is now seized or possessed, or whereof he may hereafter become seized or possessed or entitled to, so that I, the said Cornelia E. Bingham, my heirs, executors, administrators or assigns, nor any other person or persons for me, them, or either of them, shall have, claim or demand of, in or to the same or any part thereof; but thereof and therefrom shall be utterly barred and excluded forever.
(7) And I do further sell, assign, transfer and set over unto the said Joseph E. Oppenheimer, his personal representatives and assigns, any claim that I, after becoming his wife or widow, may be entitled to in the personal property which he now owns or may hereafter become possessed or entitled to, and I do hereby agree that in consideration of the payments as hereinafter provided, that I have and will hereafter make no further claim against him or against his estate, his heirs, executors, administrators or assigns, upon his demise for any share to which I, as his wife, widow, heir at law and next of kin may be entitled in the personal property of which he may be possessed.
(8) And the party of the first part, in consideration of the above release, conveyance and assignment, agrees for himself, his heirs, executors, administrators and assigns to pay to the party of the second part, or in the event that the party of the second part shall predecease the party of the first part, then to her heirs, executors, administrators, personal representatives and assigns, the sum of one hundred fifty thousand ($150,000) dollars, as follows, to wit:
Twenty-five thousand ($25,000) dollars on or before one year after the date of his death;
Twenty-five thousand ($25,000) dollars on or before two years after the date of his death;
Twenty-five thousand ($25,000) dollars on or before three years after the date of his death;
Twenty-five thousand ($25,000) dollars on or before four years after the date of his death;
Fifty thousand ($50,000) dollars on or before five years after the date of his death; and
(9) It is further understood and agreed by the parties hereto that the said payments when made are to be in full satisfaction of all claims as hereinbefore stated, and shall be received by the party of the second part in full satisfaction of all claims for dower in the real estate and of any and all her interest in the personal property to which she would be entitled as the widow of the party of the first part, and that she will make, execute, acknowledge and deliver any deeds, releases or any other instruments in writing that may be required by the party of the first part or his heirs, executors, personal representatives or assigns for the purpose of carrying out this agreement.
(10) It is further understood and agreed that if by reason of the act of any Legislature or legislative body of any state or country, or for any reason this agreement and release shall be declared insufficient to release the interest it purports to release, convey or assign, then and in that event, the amount paid hereunder shall be deducted from any sum to which the said party of the second part would be entitled as dower or to which she would be entitled as widow, or next of kin or heir at law of the party of the first part."
It is conceded that the right to a widow's allowance may be waived and that, unless it is waived, the widow is entitled to it as a matter of right (In re Dougherty's Estate, 34 Mont. 336, 86 P. 38); also that moneys paid out of an estate as an allowance are not considered as a part of an inheritance, but are charges against the estate constituting a part of the expenses of administration. In re Blackburn's Estate, 51 Mont. 234, 152 P. 31.
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