Kennedy v. Kennedy

• Decision Date: 09 June 1898
• Docket Number: 18,523
• Citation: 50 N.E. 756,150 Ind. 636
• Parties: Kennedy v. Kennedy et al
• Court: Indiana Supreme Court

50 N.E. 756

150 Ind. 636

Kennedy v. Kennedy et al

No. 18,523

Supreme Court of Indiana

June 9, 1898

From the Rush Circuit Court.

Affirmed.

John M Stevens, John A. Titsworth, Douglas Morris, Samuel L. Innis and George W. Morgan, for appellant.

B. L Smith, Claude Cambern, D. L. Smith, L. D. Guffin and J. E Watson, for appellees.

OPINION

Jordan, J.

This was an action in partition, instituted by the appellant, Sarah M. Kennedy, the widow of Archibald M. Kennedy, against the appellees, who are his children, and also legatees under his will. The complaint is in two paragraphs, but as appellant, through her counsel, has virtually waived all questions in respect to her alleged rights under the first paragraph, we give it no consideration. By the second paragraph of her complaint, appellee seeks to have assigned to her, for life, one-third of the real estate of which her husband died seized, and also to be awarded her quarantine rights, under the statute, in respect to the occupancy of the dwelling house of the deceased, and real estate adjoining thereto. This paragraph recites the provisions of an antenuptial contract executed by appellant and her deceased husband, and a copy thereof is filed as an exhibit. Appellees answered the complaint in two paragraphs, the first being a general denial. The second set out, and relied on as defense in bar to the action, the antenuptial contract mentioned in the complaint. Appellant unsucessfully demurred to this second paragraph of the answer, whereupon appellees withdrew their general denial; and she electing to stand by her demurrer to the answer, and refusing to further plead, judgment was rendered in favor of the appellees. The only question involved in the assignment of error is the construction of the marriage contract set up in the answer.

The facts averred in the answer may be thus summarized: On and prior to May 24, 1889, Archibald M. Kennedy, appellant's deceased husband, was a widower seventy-one years of age, and was the father, by a former marriage, of five adult children, the appellees in this action. He was the owner in fee simple at that time, and also at the date of his death, of the real estate of which appellant seeks partition, consisting of 240 acres, of the value of $ 15,000, and of an annual rental value of $ 600, and was also the owner, at the date of the contract, of a small amount of personal property. The appellant, at that date, was a widow forty-three years old, without children, and owned in her own right, property, real and personal, of the value of $ 1,000. On said 21st day of May, she and the said Archibald M. Kennedy, in contemplation of marriage, entered into and executed the contract in controversy; and on the next day they were duly married to each other, and became husband and wife, and lived together as such on the land in dispute until January 3, 1897, on which day Archibald M. Kennedy died, at Rush county, Indiana, leaving an estate, real and personal, of the value of $ 15,000, and leaving appellant surviving him as his widow, no children having been born to them as fruits of their marriage. On May 2, 1893, deceased executed a will in which he provided that the antenuptial contract, existing between him and his wife, should be faithfully carried out in every particular, and directed that his personal estate be sold and the proceeds be divided among his children, and that his wife should have all the property that she owned at the time of the marriage, and also one-third of the accumulations of their joint property, as in the contract provided, and in addition, he bequeathed to her a large portrait of herself and her said husband; and he further directed, in his will, that his funeral expenses be paid out of his said property, and that no part of said expenses be charged to the joint property accumulated since the marriage. The will further provided that after the provisions of the marriage contract had been complied with, and after a good and sufficient bond had been filed with the court for the faithful payment of the annuity mentioned in the antenuptial contract, which annuity, the will directed, should be paid semiannually, after the filing of such bond, the testator directed that appellees, his children, naming them, should be entitled to take charge of the property and divide it equally among them. This will was duly probated the 12th day of January, 1897, in the Rush Circuit Court, and on the same day, appellees executed to appellant a bond in the sum of five thousand dollars, conditioned for the payment semiannually to her of the annuity as provided in the marriage contract, which bond was, on the same day, accepted in writing by appellant as being sufficient for carrying out the provisions of said contract and the provisions of any will made by her deceased husband. On July 10, 1897, appellant filed in the office of the clerk of the Rush Circuit Court her election rejecting the provisions of her husband's will, and electing to take under the law.

The following is a copy of the contract in controversy, together with a copy of the estimate of the value of the personal property held by the husband on January 1, 1890: "This agreement, between Archibald M. Kennedy, of Rush county, Indiana, and Sarah Hall (formerly English), of Greensburg, Decatur county, Indiana, witnesseth, that the said parties have mutually promised to intermarry. Now, for the purpose of arranging all questions of property, and in consideration of said promise to marry, said parties agree as follows: All the property of both parties, now owned or hereafter acquired by them, or either of them, to be the common property of both parties, the rents and profits of which are to be used for their support. And at the death of said A. M. Kennedy all the property now owned by said Sarah and one-third of all the property acquired by them, or either of them, in excess of living expenses, taxes and repairs during their marriage (the said A. M. Kennedy to make a schedule or estimate of his personal property owned by him on the first day of January, 1890, and attach the same to this agreement), and all property acquired after that time, after paying expenses, etc., as above stated, is to belong one-third thereof to said Sarah, which together with the property now owned by her, is to be her own separate property. It is also agreed that, should said Sarah survive said A. M. Kennedy, then she is to have an annuity of two hundred dollars during her life, or so long as she remains a widow, which annuity is to be secured to said Sarah by all said Kennedy's legal heirs executing a bond with good and sufficient security conditioned for the prompt payment to her of the said annuity, before they shall be entitled to take possession of his estate. It is further agreed that if the said Sarah does not remain a good, true, faithful and loving wife until the death of said A. M. Kennedy, or if she separates from him, then in that case she is not to have anything but the property now owned by her; but no one is to be permitted to bring complaint of the want of love, care and fidelity to said Kennedy but he himself, unless brought during his life time. Witness our names this 21st day of May, 1889. Archibald M. Kennedy, Sarah Hall." "According to the above agreement I have estimated the value of my personal property on the 1st day of January, 1890, to be one horse and buggy and harness, to be worth one hundred and fifty dollars, and hogs, corn and hay to the value of one hundred dollars. This constitutes all the personal property owned by me over and above what will pay my debts, besides household furniture and the two thousand dollar note on my son Charlie, not taken into account. All increase above that, my wife, Sarah, will be entitled to the one-third. A. M. Kennedy."

The contention of counsel for appellant is that in accord with the proper construction of this contract, it must be held that it was not intended thereby to intercept the rights of the wife, which the law, at the death of her husband, would award her in his estate as his surviving widow. They insist that it was the intention of the parties that the appellant should have the annuity provided in the contract, after the death of the husband, in addition to the provisions made for her by law. Counsel for appellee, however, contend that appellant's rights and interest, in respect to the estate of her late husband, must be measured solely by the contract and that she is thereby barred from claiming or asserting her life interest and her rights of quarantine in the lands in controversy. Appellant's counsel insist that the one-third life interest in the lands of her deceased husband, and also her right to the widow's quarantine, are rights which appellant is awarded under sections 2644, 2653, Burns' R. S. 1894, and consequently she can only be barred or deprived of such rights thereunder in the manner provided by the statute of descents for creating a jointure for an intended wife. Sections 2661, 2663, Burns' R. S. 1894 (2500, 2502, R. S. 1881). Therefore they say that, inasmuch...