1. An ante-nuptial agreement was entered into in the following form: “Whereas a marriage is about to be contracted by and between the parties to these presents, and they are desirous to regulate the mode of enjoyment and distribution of their separate property; therefore, in consideration of the said marriage, it is agreed by and between the said parties that the separate property shall, during the joint lives of the said parties, form a fund from the income of which the said parties and their issue, if any, shall be supported and maintained; and that, for the purpose of producing such income, the said John W. Johnson shall have the management of the said separate property of the said Lucy Gooding. It is also agreed by and between the parties, that during the coverture either of said parties may, by gift, or sale, in any manner or form whatever, dispose of one-third of his or her said separate property without the other's interposing any obstacle, and without any right in such part of the estate so disposed of remaining in the other party, so that the same shall be free and clear from any claim of such other party. It is also agreed by and between the parties aforesaid, that either of the said parties, at his or her death, may, by will, or declaration in the nature of a will, devise and bequeath to any person whatsoever, in absolute property, whatever of his or her said separate property may then remain, so that the survivor shall be entirely divested of all interest therein. It is also agreed, that, on the death of either party, the survivor shall retain the full right and title in his or her separate property, and the property of the deceased party shall be distributed according to the laws then in force.” Held, that this antenuptial contract did not constitute a legal bar to dower within the provisions of the revised code of 1825; (see R. C. 1825, p. 334); neither did the naked agreement amount to an equitable jointure; that, before the wife can be deprived of her right to dower, the agreement must be executed in her favor.
Error to St. Louis Land Court.
The petition of plaintiff is as follows: “The plaintiff states she was married to John W. Johnson in the year 1831, in the city of St. Louis, in the state of Missouri, and she and said Johnson lived together in said city as husband and wife until the 1st day of June, 1854, when said Johnson died without any child or other descendant in being capable of inheriting his estate. A short time before said marriage, said Johnson presented to her articles of agreement to be signed by her and himself, and providing that, whereas a marriage was about to be contracted between them, and they were desirous to regulate the mode of enjoyment and distribution of their said property, in consideration of said marriage, it was agreed their separate property should, during their joint lives, form a fund from the income of which they and their issue, if any, should be supported and maintained. For the purpose of producing such income, said Johnson should have the management of said separate property of the plaintiff; that during the coverture either might, by gift or sale, in any manner, dispose of one-third part of his or her separate property without the other interposing any obstacle, and without any right in such part of the estate disposed of remaining in the other, so that the same should be free and clear of any claim from such other party; that either of said parties, at his or her death, might, by will, or declaration in the nature of a will, devise or bequeath to any person, in absolute property, whatever of his or her said separate property might then remain, so that the survivor should be entirely divested of all interest therein; on the death of either party, the survivor should retain the full right and title in his or her separate property, and the property of the deceased party be distributed according to the laws then in force. Said articles were signed and sealed by the plaintiff and said Johnson. Said Johnson left a will which, since his death, has been duly proved and admitted to record in the Probate Court of St. Louis county, Missouri. The said will is an ambiguous and complex document, and for that reason the same is set forth herein, the same being in the words and figures following, to-wit: [Here follows the will at large. The will was signed and published July 7, 1852. After reciting the ante-nuptial agreement above set forth, dated September 26, 1831, the will proceeds as follows: “And I, the said John W. Johnson, declare that after my marriage with my wife, the said Lucy Gooding, with her own full consent, I used and invested $3500 of her money erecting, as a residence for ourselves during our lives, and at her request, stating the house we lived in on Elm street was too lonesome, and in consequence I erected the two story brick building we now occupy on my own land, situated on the north side of Market street, in said city of St. Louis, and No. 155, and cost me $4600, as per my account book. I devise and bequeath to said wife Lucy, during her natural life, and no longer, the said building,” &c. “I desire that my executor and executrix, hereinafter named, shall cause all my household and kitchen furniture (with the exception of my silver plate) to be valued and divided into three equal parts, as near as may be, and one part shall be selected by my wife Lucy, to whom such part is hereby bequeathed,” &c. “The devises and bequests hereby made to my wife Lucy are intended and declared to be in full satisfaction of all and every claim, right of dower, or other demands which she may have to my estate, and on the express condition that it shall be received as such. The real estate herein mentioned and devised to my wife Lucy, during her natural life, I devise, after the said Lucy's death, to my grandson, John E. Gleim,” &c. “I direct and order, within a year after the death of my said wife, my said grandson, his heirs and assigns, to pay to the heirs or legatees of the said Lucy, the sum of $3500, money of the said Lucy, invested in erecting the said house for our residence during our lives; but this to be paid without interest thereon; the same to remain a charge on the said house and lot until paid, unless they can make some other satisfactory arrangements so there will be no loss in my property to the injury of my heirs.” The will contained numerous particular bequests. Then follows a codicil, which it is unnecessary to set forth.] On the 12th day of September, 1854, the persons named in the said will having refused to qualify as executors thereof, the defendant, Eaton, was duly appointed by the Probate Court of St. Louis county, administrator, with the will annexed, of the said John W. Johnson, all of which will appear by a copy of said letters of administration, with the will annexed. Since the said grant of letters, said Eaton, as such administrator, has been in possession of the said real estate devised in said will, receiving rents from the tenants thereof. The other defendants in this suit accept the provisions of the will, and claim the interests respectively devised to them by said Johnson out of his said real estate; that there never was any issue of the said marriage of the plaintiff with the said Johnson. Said Johnson, at his death, was...
