Johnston v. Johnston
| Citation | 134 Ind.App. 351,184 N.E.2d 651 |
| Decision Date | 20 August 1962 |
| Docket Number | No. 19474,No. 2,19474,2 |
| Parties | Elizabeth R. JOHNSTON, Appellant, v. J. Roland JOHNSTON, Executor of the Last Will and Testament of G. Edwin Johnston, Deceased, Frances R. Johnston, Clarence Waldo Johnston, Eleanor Johnston Fosdick, Jeanne Stotler Hauver, Appellees |
| Court | Court of Appeals of Indiana |
Frank I. Hamilton, Hubert E. Wickens, Greensburg, for appellant.
Vance M. Waggoner, Rushville, James B. Davison, Richmond, for appellees.
This appeal arises from a Declaratory Judgment adverse to appellant in the Rush Circuit Court.
The decision of the trial court holds that the ante-nuptial agreement set out in the complaint operates to divest this appellant from any right, title or interest she might otherwise have had in the said decedent's estate. The pertinent portion of the alleged contract reads as follows:
'In consideration of the promise and covenant of the party of the second part as hereinafter set out, the party of the first part does hereby and herewith release, quit claim and forever discharge all rights and interests of whatsoever nature which she may now have or hereafter acquire in the property, real personal or mixed, of the party of the second part, hereby specifically releasing and relinquishing any and all claims which she may have or acquire in the estate of said party of the second part if said party of the second part predeceases her.
'In consideration of the promise and covenant of the party of the first part as set forther hereinabove, the party of the second part does hereby and herewith release, quit-claim and forever discharge all rights and interest of whatsoever nature which he may now have or hereafter acquire in the property, real, personal and mixed, of the party of the first part, hereby specifically releasing and relinquishing any and all claims which he may have or acquire in the estate of said party of the first part if said party of the first party predeceases him.
'It is understood and agreed between the parties hereto that each of said parties shall have the power and right to dispose of any or all of their respective property during the existence of the marriage relationship or by will.'
It is appellant's position that the judgment is not supported by sufficient evidence, and that the decision is contrary to law, because the uncontroverted evidence 'surrounding the making of the alleged agreement supply a classic and complete case of constructive fraud,' in that decedent breached an alleged affirmative duty imposed on him by law to fully inform his fiance of the value, nature, and extent of his property. In addition she argues that undue advantage was taken of her, in that she was put off with property, so grossly disproportionate in value to the estate of her intended husband that equity should intervene and declare the contract voidable because such gross disproportion constitutes a basis for constructive fraud.
The facts most favorable to appellees disclose that the appellant and the decedent, G. Edwin Johnston, were married in the town of Tarentum, Pennsylvania on the 20th day of July, 1940. On the day prior to the marriage, this appellant and the said G. Edwin Johnston signed a purported ante-nuptial agreement.
The evidence discloses that decedent's first wife was the sister-in-law of appellant. Appellant had known the decedent for at least thirty-five (35) years before their marriage.
Prior to the marriage, decedent and appellant had kept company for several years. At the time of signing, decedent was sixty-one (61) years old and appellant was fifty-seven (57) years of age. Neither appellant nor decedent had any living children at the time and none were born of this marriage. Decedent had practiced law for many years in Connersville, Indiana, and at the date of marriage was Judge of the Fayette Circuit Court of Fayette County. In addition, he was a stockholder in and a director on the boards of both Union Savings and Loan Association and a bank at Connersville, Indiana. He also owned two small apartment buildings, in one of which he lived, and he was the record title holder of some land just north of Connersville, the acreage of which was undisclosed.
The execution of the ante-nuptial agreement took place at the home of Frances R. Johnston, the sister of decedent. There were four people present at the time, all of whom were related to decedent. Said Frances R. Johnston testified that prior to the signing, appellant had informed her that a 'marriage paper' was being prepared by decedent's attorney. She (the witness) stated that each of the parties had discussed with her the extent of the value of decedent's property. That the instrument was presented to appellant the day before the marriage and the appellant told her that 'they were preparing a marriage paper that night.'
The document was prepared in duplicate and appellant was given a copy prior to her signing. Frances R. Johnston further testified that she, in fact, observed the appellant reading the said agreement.
The evidence discloses that appellant was fifty-seven (57) years of age at the time and that she had been widowed some twenty years earlier but had never been gainfully employed. There is evidence that in July, 1940, appellant owned a house, costing $4,000.00, stocks and bonds, $7,000.00 in a doctor's building, a warehouse building and two extra lots, 'one hundred dollars and the back was a fifty dollar lot.' We fail to find any evidence in the record as to the nature and value of decedent's property and interests at the time of the execution of the agreement. We find no evidence in the record to support any inference that decedent actively concealed the nature and extent of his property from appellant, or that appellant evidenced any unwillingness to abide with the terms of the agreement during coverture.
It is well established in this state that by such an agreement the prospective husband may waive his statutory rights in the estate of his intended wife, and she, likewise may, by such agreement waive her statutory rights in his estate. Shaffer v. Matthews (1881), 77 Ind. 83; McNutt v. McNutt et al. (1888), 116 Ind. 545, 19 N.E. 115, 2 L.R.A. 372. If such a contract or agreement is fairly and equitably entered into between the parties, it, and not the law, furnishes the measure of their respective rights. Nor will a mistake as to the law, of itself, be sufficient ground on which to set aside such an agreement. But if one of the parties knowingly or fraudulently misrepresents the law or the facts, and thereby gains an unfair advantage over the victim of the misrepresentation, such contract may be set aside. Lamb v. Lamb (1891), 130 Ind. 273, 30 N.E. 36. Here, there appears nothing to indicate that the ante-nuptial contract was entered into in an unfair or inequitable manner. On the contrary the evidence reflects that appellant was acquainted with the agreement and its contents, read it, and had opportunity to seek independent advice...
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