Keller v. Keller

• Decision Date: 10 July 1926
• Docket Number: 26,873
• Citation: 247 P. 433,121 Kan. 520
• Parties: HENRIETTE KELLER, Appellant, v. HENRY KELLER et al., Appellees
• Court: Kansas Supreme Court

247 P. 433

121 Kan. 520

HENRIETTE KELLER, Appellant, v. HENRY KELLER et al., Appellees

No. 26,873

Supreme Court of Kansas

July 10, 1926

Decided July, 1926.

Appeal from Ellis district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HUSBAND AND WIFE -- Postnuptial Agreement -- Validity and Effect. A postnuptial agreement reciting that the husband and wife had both been married, that each had children by a former marriage, and that at the time of their marriage each held and possessed real estate and personal property not in any manner obtained from or through the other; that each had children from such former marriage living, and that in consideration of the premises, promises and covenants of each, it was agreed that upon the death of either of them the survivor should not be entitled to receive or claim any portion or interest in the separate property of the deceased owner at the time of the marriage or acquired by either of them since their marriage to each other, was valid and binding on the surviving spouse.

David Ritchie and Omer D. Smith, both of Salina, for the appellant.

J. E. Driscoll, of Russell, and Guy L. Hursh, of Topeka, for the appellees.

OPINION

HOPKINS, J.:

This controversy involves the validity of a postnuptial agreement. The husband died and the wife sought to avoid its terms. The court held it valid, and plaintiff appeals.

The agreement recited that each of the parties had previously been married; that each had children by a former marriage, and that at the time of their marriage each held and possessed real estate and personal property not in any manner acquired or obtained from or through the other; that each had children from such former marriage living, and that, in consideration of the premises, promises and covenants of each, it was agreed that upon the death of either of them the survivor should not be entitled to receive or claim any portion or interest in the separate property of the deceased owner at the time of the marriage or acquired by either of them since their marriage to each other.

The plaintiff contends that the contract is not a conveyance; that it did not divest her of her right of inheritance in her husband's property; that the statute concerning descents and distributions (R. S. 22-108) gives to the wife one-half of all the real estate which may have been owned by her deceased husband during the marriage, and which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance; that the land involved had not been sold on execution or other judicial sale, and is not necessary for the payment of debts, so that, under the plain mandate of the statute, one-half of this land, upon the death of her husband, must vest in her, unless she had made a conveyance thereof. She argues that under the statute, to which reference is made, the methods prescribed by which she could bar herself, or could be barred of the right to inherit the real estate of her deceased husband, are exclusive. That is to say, if the land had not been sold on judicial sale, and is not necessary for the payment of debts, then, and in that event, the only manner in which the wife could deprive herself of this inheritable interest would be by conveyance. Various authorities are cited in support of her contention which are not controlling here. Other theories are advanced to support the plaintiff's contentions which need not be discussed. This court has on other occasions had the same or similar question under consideration and decided adversely to the contention of the plaintiff.

In King v. Mollohan, 61 Kan. 683, 60 P. 731, it was said:

"Marriage settlements controlling the division and affecting the descent of property, freely and intelligently made, and which are just and equitable in their provisions, are not invalid." (Syl. P 1.)

In Eberhart v. Rath, 89 Kan. 329, 131 P. 604, it was said:

"A widow residing and owning lands in this state married a man residing and owning property in Nebraska. As part of the marriage contract it was orally agreed that he should receive nothing of her estate in case she died first, and that she should receive the sum of $ 1,000 only of his estate in case he died first. After the marriage in Kansas the parties established their home in Nebraska, where they resided for seventeen years, when she died, leaving children by a former marriage, and a son by her last marriage. Soon after the marriage the husband and the wife entered into a written contract, in view of the oral agreement, and of the same purport. In this action for partition brought by the children of the former marriage the surviving husband claims one-half of the land in this state owned by his wife at the time of the marriage and at her death. It is held that the written contract is valid and effectual although it does not recite or refer to the previous oral agreement." (Syl. P 1.)

And in the opinion is this language:

"There is no statute in this state that makes a postnuptial...