In Re: Will of Gemma Prudenzano

• Decision Date: 04 October 1949
• Parties: IN RE: WILL OF GEMMA PRUDENZANO
• Court: Vermont Supreme Court

68 A.2d 704

116 Vt. 55

IN RE: WILL OF GEMMA PRUDENZANO

Supreme Court of Vermont

October 4, 1949

May Term, 1949.

Separation Agreements.

1. The validity of post-nuptial agreements has long been generally recognized in the courts of Vermont.

2. A contract involving a post-nuptial agreement is, in the absence of a showing to the contrary, presumptively fair.

3. Equity will enforce contracts made directly between husband and wife in proper cases.

4. A widower's statutory rights in his deceased wife's estate may be barred in equity by a post-nuptial contract made after separation or in contemplation of an immediate separation which takes place as contemplated, provided that the bargain is fair and equitable in view of the circumstances of the parties.

5. The probate court does not proceed according to the common law but has a special and limited jurisdiction given by statute and if it ap pears on the face of the proceedings that it has acted in a manner prohibited or not authorized by law, its orders and decrees are absolutely void and may be treated as a nullity.

6. Nothing is presumed in favor of the jurisdiction of the probate court and such jurisdiction must be made affirmatively to appear by one who seeks to take advantage of its proceedings.

7. Probate courts, of necessity, possess a portion of equitable powers independent of statute; however, the equity powers enjoyed by probate courts do not extend to the establishment of purely equitable claims and rights.

8. The jurisdiction of the court of chancery in probate matters is not original, but special and limited, and only in aid of the probate court when the powers of that court are inadequate.

9. It is beyond the power of a probate court to specifically enforce an antenuptial or a post-nuptial contract.

10. Re-enactment by the legislature of a statute which has been the subject of judicial construction carries with it such construction.

APPEAL FROM DECREE of the Probate Court. In Probate Court, District of Grand Isle, Glenn M. Dodds, J. The appeal was taken directly to the Supreme Court. Reversed and remanded.

Decree reversed, and cause remanded, with directions that the proceedings herein be stayed for sixty days to give the administrator c. t. a. of the will of Gemma Prudenzano an opportunity to apply to the Grand Isle County Court of Chancery for relief. If application is so made, proceedings herein shall be stayed pending the final determination thereof. If application is not so made, the Probate Court for the District of Grand Isle shall assign to Albert Prudenzano, surviving husband, that right and interest in and to the estate of his deceased wife which the Vermont statutes confer.

Hilton A. Wick for the appellant.

George L. Agel, Philip W. Hunt and A. Pearley Feen for the appellee.

Present: SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

OPINION

BLACKMER

Albert Prudenzano and Gemma Prudenzano were husband and wife. Prior to 1940 they resided in South Hero. They had no children. On July 10, 1940, they entered into a written separation agreement. The agreement recited that they were separated and living apart, and had agreed on a settlement of all property rights and differences existing between them. Gemma agreed to assume the payment of certain bills of the parties then outstanding in the sum of $ 2128.01. Albert agreed to convey to Gemma through a trustee all his right, title and interest to real estate in South Hero owned by them as tenants by the entirety. From the time of the execution of the agreement to the time of Gemma's death they did live separate and apart. So far as appears, each one performed his and her part of the agreement. The agreement further recited that it was "a full and complete settlement of all property rights between the parties now and after the death of either party to this agreement" and that "from this time forward neither party shall have any interest of any kind or nature in or to any property, real, personal or mixed of the other party to this agreement whether now owned by such party or hereafter acquired". There were other provisions of the agreement not material to the case as presented.

On February 15, 1947, Gemma executed a will leaving everything she owned, real and personal, to persons other than her husband Albert. On April first Gemma was killed in a grade crossing accident. Albert survived her. Her will was presented for probate, and was duly allowed by the Probate Court for the District of Grand Isle. In due course of probate an inventory was filed disclosing real estate valued at $ 5000.00 and personal estate valued at $ 1,000.12. The commissioners allowed claims against the estate in the sum of $ 1,712.35.

Albert seasonably waived the provisions of his wife's will, and asked for an assignment of a surviving husband's statutory share of his wife's personal and real estate, and also of a homestead. On March 20, 1948, he again appeared through his attorneys and asked for an assignment of his statutory share of the estate. On April 29, 1948, the Probate Court decreed all of the property to the legatees named in the will. By its decree the court refused to assign or set out to Albert any part of his wife's estate. The decree recited the existence of the separation agreement and the filing of the waiver, and also that it was "giving effect to the aforementioned separation agreement as permitted by law and in the exercise of this Court's discretion."

The appellant Albert's exceptions to the decree raise the questions briefed: (1) Can a husband's right to share in the estate of his deceased wife be barred by a post-nuptial separation agreement, or can it be barred only in the manner provided by the statutes, and (2) does the Probate Court have jurisdiction to give effect to such an agreement?

This state has long recognized the validity of post-nuptial agreements generally. Cleary v. LaFrance, 109 Vt. 422, 425-427, 199 A. 242. In that case we said at 425 "it is not against public policy to allow the spouses, where the separation has already taken place, or is immediately to take place, fairly to define by contract their mutual rights and obligations with respect to property and to the wife's support, whether such agreement is made directly between the spouses or through the intervention of a trustee".

What little appears in the record tends to show that the contract now under consideration was fair and equitable. There is no claim made that it is unfair or inequitable in its provisions, and, in the absence of a showing to the contrary, it is presumptively fair. Cleary v. LaFrance, 109 Vt. 422, 427, 199 A. 242.

The great weight of modern authority, both cases and texts, supports the view that a bargain between husband and wife, made after separation, or in contemplation of an immediate separation which takes place as contemplated, whereby the husband contracts to release his interest in the property which his wife shall own on her death is legal if the bargain is fair and equitable in view of the circumstances of the parties. Cases cited in annotations 35 A.L.R. 1505, 1522 and 49 A.L.R. 116, 148; Restatement of The Law of Contracts, § 584; Williston on Contracts, Rev. Ed. Vol. 3, § 1742, page 4930; 26 CJS, Descent and Distribution, § 58b.

The statutory rights of a widower are: (1) Homestead, V. S. 2610, 2614, Rev. 1947, (2) statutory curtesy, being one third at least of his deceased wife's real estate, V. S. 3040, Rev. 1947, (3) one third, at least, of his deceased wife's personal property, V. S. 3018, Rev. 1947, (4) when the spouses are residing together at the time of the wife's decease, all household goods, furnishing, furniture, and household outfit, V. S. 3020, Rev. 1947. This last is obviously not applicable in the instant case.

There are specific ways provided in the statutes by which the first three of the enumerated rights may be barred. Under V. S. 2615, Rev. 1947, the homestead may be forfeited and sold under some circumstances when there are minor children, but that is not the situation here. Statutory curtesy may be barred under V. S. 3042, Rev. 1947, where there is no issue and the widower either elects to take one third of the deceased wife's real estate or waives the provisions of her will and takes the first four thousand dollars and one half the remainder. Statutory curtesy is also barred when the widower accepts the provisions made for him by the last will and testament of his wife. The right to one third, at least, of the personal property may be barred under V. S. 3042, Rev. 1947, in like manner as noted above.

The statutes do not provide that a widower's statutory rights in his wife's estate may be barred by a post-nuptial contract, nor do they provide that they may not be so barred. Nor do the statutes permit or prohibit a widower's statutory rights to be barred by an ante-nuptial contract but such contracts have heretofore been held enforceable in equity. Munsell, Apt. v. Munsell's Est., 95 Vt. 103, 105, 113 A. 521; Smith and Nye, Exrs. v. Munsell et al., 94 Vt. 201, 207, 110 A. 12. We believe that the question which is raised here on the statutes cited above never occurred to the General Assembly when it framed the law, and that the body, to the present, has not endeavored to dispose of it. In this view we are fortified by the fact that the end for which the appellant contends is neither fair nor equitable, and therefore not one likely to appeal to the law making body. It would permit appellant to eat his cake, and later to have it also. In Squires v. Squires, 53 Vt. 208, 210-211, 38 Am Rep 668, this court quoted the eminent jurist, Cooley, C. J. in Randall v. Randall, 37 Mich. 563. Although Squires v. Squires is not direct authority the...