Mallory's Adm'r v. Mallory's Adm'r

• Decision Date: 03 December 1891
• Citation: 92 Ky. 316,17 S.W. 737
• Parties: Mallory's Adm'r v. Mallory's Adm'r et al.
• Court: Kentucky Court of Appeals

17 S.W. 737

92 Ky. 316

Mallory's Adm'r v. Mallory's Adm'r et al.

Court of Appeals of Kentucky.

December 3, 1891

Appeal from circuit court, Todd county. Reversed.

"To be officially reported."

Action by C. L. Mallory's administrator against A. W Mallory's administrator to recover personal property. Judgment for defendant. Plaintiff appeals.

Bennett J.

A. W Mallory, the appellee's intestate, was a widower with children, and C. L. Mallory, the appellant's intestate was a widow with one child, a son. Both of these persons owned property, and married each other. The husband, the appellee's intestate, died, and in a few days thereafter and before the personal property that the statute gives to the widow, and which is to be set apart to her, was set apart, C. L. Mallory, wife of A. W. Mallory, and the appellant's intestate, died. This suit was instituted by appellant's administrator to recover of the appellee, as administrator, the value of the said personal property, the same not having been set apart, and was, or some of it, on hand at the death of A. W. Mallory, but disposed of by the appellee. The contention of appellee is that, as there was an antenuptial contract between C. L. and A. W. Mallory, that entitled each to retain the title of his and her property and dispose of the same as though no marriage had taken place, C. L. Mallory was not entitled to the property that the statute directs to be set apart to the widow upon the death of her husband. It is not alleged that the antenuptial contract was in writing; and as chapter 22, § 1, requires contracts in consideration of marriage to be in writing, if the contract relied upon comes within said provision, it was necessary to allege that the contract was in writing; and the answer, because of not alleging that fact, is not sufficient. Besides, the proof fails to show that the contract was in writing. Does the alleged contract come within said provision? It seems that the question has been settled and put beyond dispute by this court in the case of Potts v. Merritt, 14 B. Mon. 406. That case, like this, was a case of verbal and antenuptial contract, and the Revised Statutes, then in force, had the same provision, as to requiring the antenuptial contract to be in writing, as the General Statutes, supra; and this court held that the contract was not enforceable, in law or in equity, unless it was in writing. An antenuptial contract is one by which ...