McClain's Estate v. McClain

• Decision Date: 29 June 1962
• Docket Number: No. 19502,No. 1,19502,1
• Citation: McClain's Estate v. McClain, 133 Ind.App. 645, 183 N.E.2d 842 (Ind. App. 1962)
• Parties: In the Matter of the ESTATE of John F. McCLAIN, Deceased, Samuel McClain and Ross McClain, Co-Administrators, Thomas G. McClain, Appellants, v. Helen Bonta McCLAIN, Appellee
• Court: Indiana Appellate Court

Page 842

183 N.E.2d 842

133 Ind.App. 645

In the Matter of the ESTATE of John F. McCLAIN, DeceasedSamuel McClain and Ross McClainCo-Administrators, Thomas G. McClain, Appellants, v.Helen Bonta McCLAIN, Appellee.

No. 19502.

Appellate Court of Indiana, Division No. 1.

June 29, 1962.

John O. Campbell, Richard E. Sisson, Marion, Charles & Tobin, H. D. Nesbitt, Campbell, Gemmill, Browne, Torrance & Sisson, Marion, of counsel, for appellants.

Cole, Wildman & Cole, Russell J. Wildman, Peru, for appellee.

AX, Judge.

Appellee filed a Petition to Determine Heirship wherein she alleged that John F. McClain, deceased, died intestate August 19, 1956, and left surviving him as his sole and only heirs-at-law his second childless widow (the petitioner and appellee herein) and Thomas G. McClain, his son born by a prior marriage.

Appellants denied this heirship and by an answer set forth a Pre-Marriage Settlement Agreement entered into between decedent and appellee.

The sole question presented to the court below concerned the validity of the Pre-Marriage Settlement.The trial court found the agreement to be invalid and determined that appellee and decedent's son should share in the estate as provided by the Statutes of Descent of the State of Indiana.

Appellant contends that the agreement is valid and that the decision below is contrary to law and is not sustained by sufficient evidence.

Appellee's position is that the antenuptial contract, designated by the parties as a Pre-Marriage Settlement, is invalid because it is against public policy in that it relieved the decedent, John F. McClain, of any duty to support his wife and thereby encourages domestic discord.

The contractual provisions pertinent to a consideration of the issues are as follows:

'PRE-MARRIAGE SETTLEMENT AGREEMENT

'THIS AGREEMENT entered in duplicate between JOHN F. McCLAIN, herein called 'McCLAIN' and HELEN BONTA, herein called 'BONTA,'

'WITNESSETH

'WHEREAS, the parties hereto contemplate marriage at an early date and desire to have their property matters made certain previous thereto;

'WHEREAS, the parties hereto desire to have and hold their separate property after said marriage, free from any incidents that may arise out of said proposed marriage relationship.

'NOW, THEREFORE, in consideration of the premises and the mutual covenants, agreements and conditions herein contained, the parties hereto covenant and agree as follows, to-wit:

'After the marriage of the parties, Bonta shall have and hold any monies, earnings, income, property (real, personal or mixed), insurance or estate of any character or nature which Bonta may now have or may acquire as her sole and separate property, free and discharged from any rights of McClain arising out of said marriage relationship of the parties, free and discharged from any rights of inheritance, descent, statutory allowance, statutory support, or otherwise, and free and discharged of any right to administer upon the estate of the other, the right to elect to take against a Will of the other, or to interfere or participate in any manner in the settlement and administration of the estate of the other.

'After said marriage, the provisions hereof shall not prevent either party hereto from making provision for the other by Will, by contractual or title arrangement, or otherwise, and such provision made in any such instruments shall not be impaired by this agreement; and subsequent to this agreement either party may arrange titles to their respective after-acquired property in such manner as they please, and this agreement shall not affect such arrangements. * * *'

Appellee contends that the words 'free and discharged from any rights of Bonta arising out of said marriage relationship of the parties, free and discharged from any rights of inheritance, descent, statutory allowance, statutory support or otherwise' as used in paragraph 2, represents an illegal attempt on the part of Mr. McClain to relieve himself of the duty imposed upon him by established law to support his wife.

The trial court evidently adopted the appellee's construction of the contractual provisions by following the general rule of law to the effect that if any part of an entire consideration for a promise, or of any part of an entire promise, is illegal, whether at common law, or by statute, the whole contract is void.James et al. v. Jellison(1883), 94 Ind. 292;Jordan v. Kittle(1928), 88 Ind.App. 275, 150 N.E. 817.However, there is a well recognized exception to the rule invalidating antenuptial agreements which provides for, facilitates or tends to induce a separation or divorce by placing the husband in a position to profit therefrom.This exception arises where the agreement also contains a provision delineating the rights of the survivor on death, where the parties in fact cohabit until one of them dies.In such circumstances the invalidity of the clause relating to separation or divorce does not affect the provisions concerning rights on death.57 A.L.R.2d § 4, p. 949.

The above exception is based upon the well established principle of contract law which asserts in substance that if the consideration for a contract be partly legal and partly illegal, the courts will not enforce a promise based upon it, as the illegal part of the consideration vitiates the entire contract and renders it unenforceable, but if several promises, some of which are legal and some illegal, be all based upon one entire consideration which is legal, the law will enforce the legal promise while denying relief in proceeding to enforce the illegal promises.Simpson et al. v. Fuller(1943), 114 Ind.App. 583, 587, 51 N.E.2d 870;Hynds v. Hays(1865), 25 Ind. 31, 40.

Marriage is the primary consideration for promises made in an antenuptial contract, and when some of such promises are legal while others are illegal, the former will be enforced regardless of the illegality of the latter.Stratton, Adm'r v. Wilson(1916), 170 Ky. 62, 69, 185 S.W 522;Ehlers v. Ehlers(1930), 259 Ill.App. 142.

In the case hereinthe parties agreed in effect that the survivor of their marriage would take nothing by virtue of their marital relationship.Such an agreement is not only legal but is favored by the law as promoting domestic happiness and adjusting property questions which might otherwise become the source of litigation.Buffington v. Buffington, Executor(1898), 151 Ind. 200, 51 N.E. 328;Baugher v. Barrett et al.(1957), 128 Ind.App. 233, 145 N.E.2d 297;Roush v. Hullinger, et al.(1949), 119 Ind.App. 342, 86 N.E.2d 714.

The case of Baugher v. Barrett, supra, sets forth general rules for construction of antenuptial agreements in the following statement:

'There are certain general rules of construction with reference to the determination of * * * an antenuptial agreement.The authorities seem to agree that in construing such agreements that they are to be construed generally according to principles applicable to the construction of contracts generally, but since such agreements are favored by public policy, they shall be construed liberally to effect the intention of the parties, and in determining such intention, consideration should be had of the language of the entire instrument, together with its general scope and purpose, the conditions surrounding the parties at the time the agreement was made, the legal rights of the parties as they existed before, and would have existed after the marriage if no agreement had been made.26 Am.Jur.Husband and Wife, § 280, pp. 886-887.Each case must be determined upon the basis of the facts in the particular case and the language used in such agreements.'

Under this statement of law, the antenuptial agreement is to be construed:

1.According to the principles applicable to the construction of contracts generally; and

2.Liberally to effect the intention of the parties.

The antenuptial contract was entered into by appellee and decedent on the 10th day of February, 1955 subsequent to the enactment and effective date of the new Probate Code and prior to the marriage of the parties.The Probate Code, § 213 of Chapter 112 of the Acts of 1953, the same being § 6-213 of Burns' Indiana Statutes Annotated, 1953 Replacement, is applicable and must be considered in determining the validity of the Pre-Marriage Settlement Agreement.This statute reads as follows:

'Waiver of Expectancy.--The intestate share or other expectancy which the spouse or other heir may be entitled to may be waived at any time by a written contract, agreement or waiver signed by the party waiving such share or expectancy.The promise of marriage, in the absence of fraud, shall be a sufficient consideration in the case of an agreement made before marriage.In all other cases such contract, agreement or waiver shall be binding upon the parties thereto if executed after a full disclosure of the nature and extent of such right, and if the thing or promise given to such party is a fair consideration under all the circumstances.Except as otherwise provided therein, such waiver executed by the decedent's spouse shall be deemed a waiver of the right to elect to take against the decedent's will and the written contract, agreement, or waiver may be filed in the same manner as is provided in this code for the filing of an election.(Acts 1953, ch. 112, § 213, p. 295.)'

The enactment of this section of the Probate Code is a codification of the case law of Indiana and an affirmation of the public policy of this State to favor antenuptial agreements.The waiver of the intestate share or other expectancy of a spouse at any time is expressly provided; and, in the case of an agreement entered into before marriage, the promise of marriage, in the absence of fraud, is declared to be a sufficient consideration.

The evidence, when tested against the provisions of the statute, substantiates the Pre-Marriage Settlement in all respects.The agreement is in writing.The...