McAlpine v. McAlpine

• Decision Date: 03 October 1917
• Citation: 101 A. 1021,116 Me. 321
• Parties: McALPINE et al. v. McALPINE.
• Court: Maine Supreme Court

101 A. 1021

116 Me. 321

McALPINE et al.

v. McALPINE.

Supreme Judicial Court of Maine.

Oct. 3, 1917.

Report from Supreme Judicial Court, Cumberland County, in Equity.

Bill by Edith H. McAlpine and others against Alice C. McAlpine. Case reported. Bill sustained.

Argued before CORNISH, C. J., and KING, BIRD, HALEY, and PHILBROOK, JJ.

Peabody & Peabody, of Portland, for plaintiffs. Coombs & Gould, of Portland, for defendant.

HALEY, J. A bill in equity asking for the specific performance of an antenuptial agreement, and for an injunction restraining the defendant from prosecuting a petition for an allowance filed by her in the probate court for Cumberland county. The defendant filed a general demurrer to the bill, and an answer admitting all the facts alleged in the bill; the case is before this court upon report.

The plaintiffs are the children of Silas H. McAlpine, late of Portland, county of Cumberland, who died intestate March 14, 1916; one of said children being the administratrix of the deceased. The defendant is the widow of the said Silas H. McAlpine. On January 6, 1900, Silas H. McAlpine, then a widower, and the defendant, then Alice C. Moore, both more than 21 years of age, being engaged to be married, executed an antenuptial contract, by the terms whereof in consideration of the mutual promises to marry and of the sum of $5,000 the defendant "agreed to release and relinquish, and does hereby release and relinquish, any and all claims of every name and nature upon the residue of the estate of said Silas H. McAlpine which, except for this agreement and contract as the widow of said Silas H. McAlpine she would have under the law of the state of Maine, or any other state of the United States or of any foreign country. * * * And she further agrees to sign all papers, and perform all acts, necessary to carry this contract into execution." It was provided that the $5,000 named in the agreement should be paid the widow after the decease of said Silas H. McAlpine.

The contract was acknowledged as the free act and deed of both parties the day of its date, January 6, 1900, but was not executed in the presence of two witnesses, as required by section 6, chapter 63, R. S. 1903, which provides how a marriage settlement shall be executed. January 17, 1900, the parties were married and lived together as husband and wife until Mr. McAlpine's decease March 14, 1916.

The inventory filed in the probate court shows that the estate of Mr. McAlpine was appraised, real estate $3,000, personal estate, $19,366.77. March 22, 1916, the administratrix of Silas H. McAlpine offered to pay to the defendant the sum of $5,000, according to the terms of said agreement, which the defendant refused to receive and release the estate from all claims according to said agreement. April 25, 1916, the defendant filed in the probate court for Cumberland county a petition for an allowance as widow out of the personal estate of said deceased, upon which notice was ordered, and this suit is brought to enforce the antenuptial contract dated January 6, 1900, and prays that the defendant be ordered to perform said contract and to execute and deliver to the administratrix a release of all her distributive share of the estate and all claims as widow, including her claim for a widow's allowance, and for other appropriate relief. The $5,000 tendered to the defendant was paid into court when the bill was filed. The only issue in the case is the validity and construction of the antenuptial agreement above referred to.

The statute under which the defendant claims the agreement was executed was section 6 of chapter 63, Revision of 1903, and so much thereof as is material reads as follows:

"But a husband and wife, by a marriage settlement executed in presence of two witnesses before marriage, may determine what rights each, shall have in the other's estate during the marriage, and after its dissolution by death, and may bar each other of all rights in their respective estates not so secured to them."

It is the claim of the defendant that, as the statute above quoted provides that the agreement to bar the widow's right in the real estate of her deceased husband must be executed in the presence of two witnesses, and as the paper executed by the defendant was not executed in the presence of any witness, that it is not a bar; that the widow can be barred only in the manner prescribed by the statute; that the statutes are exclusive and render all other forms of antenuptial agreements void and consequently unenforceable in equity. It is admitted that the agreement was not a statutory marriage settlement, as it does not appear to have been executed in the presence of two witnesses, nor is it claimed to be a jointure in its technical legal sense, and it is not pretended that it is of itself a legal bar since it distinctly provides for the further execution of such papers as may be necessary to make its terms effective in law. It is an antenuptial contract, an agreement made by two parties under no disability, both being sui juris. The agreement is not a bar to an action at law by the widow to recover her distributive share of her deceased husband's estate as it was not fully executed. It provided that the wife should execute the necessary papers to complete it.

In Bright v. Chapman, 105 Me. 62, 72 Atl. 750, the court, in discussing the statute above referred to, said:

"It does not follow that the section quoted covers the whole field of marriage settlements. On the contrary, it is clear that marriage settlements may be made which contain agreements as to matters growing out of the marriage relations other than 'rights' in the estate of one or the other. * * * Equity will enforce such antenuptial settlements."

Practically the same question involved in this case was discussed in 1751 in the case of Buckinghamshire v. Dlury (2d Ed.) 39, 60, in which Lord Hardwicke said:

"The next thing is the consideration of equity, whether the...