Naill v. Maurer

• Decision Date: 19 July 1866
• Citation: 25 Md. 532
• Parties: DAVID W. NAILL ET AL. v. RACHEL MAURER.
• Court: Maryland Court of Appeals

25 Md. 532

DAVID W. NAILL ET AL. v. RACHEL MAURER.

Court of Appeals of Maryland

July 19, 1866

APPEAL from the Circuit Court of Baltimore city.

The bill in this cause was filed on the 22nd of March, 1861, by the appellee, as widow of Paul Maurer, for an assignment of dower, damages for its detention, and for discovery. It states that the appellee was married to said Maurer in 1852 and that he died in 1853, seized of a large real estate in Baltimore city, and in Carroll and Frederick counties; that he died intestate, and that parcels of said lands are in possession of some of the defendants as his heirs-at-law, and of the other defendants; and the bill prays for the relief as above stated, and for general relief.

The answers admit the allegations of the bill, but set up the defence that prior to the marriage of the appellee with said Maurer, they entered into a marriage contract, whereby each mutually agreed not to claim during the marriage, or after the death of the other, any interest whatever in the property or estate of the other. The contract was exhibited with the answers.

It was proved on the part of the appellee, that at the time of her marriage with said Maurer, she was in reduced circumstances and was his housekeeper, and that since his death, she had been living in a condition of actual want; that she knew nothing of business, and was hardly able to to understand the meaning of such contract if read to her.

It was also proven on the part of the appellants, by Basil Root that he prepared the ante-nuptial contract in question, and was present at its execution; that during the preparation of it, he had repeated conversations with both parties, in the presence of each other, and that Maurer said he had settled on his wife the sum of $4,000, including a groundrent, to which Mrs. Maurer, (then Rachel Bond,) assented, and expressed herself satisfied, saying further, that the marriage contract was not necessary, as she would never trouble Maurer's estate.

It was also shown that said Paul Maurer died seized of real estate worth $54,262.50; and further proved that the said marriage contract was found among the papers of the said Maurer after his death, and that the same had not been lodged anywhere for record, and in fact, there is no legal proof that it was ever lodged for record anywhere until the year 1857, in Carroll county.

The Court below decreed that the appellee was entitled to the relief prayed, and referred the cause to the auditor to state an account in conformity with its decision. From this decree the present appeal was taken.

The cause was argued before BOWIE, C.J., and BARTOL GOLDSBOROUGH, COCHRAN, and WEISEL, J.

S. T Wallis and Edward Israel for the appellants:

The effect of the ante-nuptial contract, if valid, is determined, to some extent, in the case of Maurer vs. Naill, 3 Md. Rep., 324, on an appeal from the Orphans' Court, between the same parties. The Court below decreed for the complainants.

The appellants contend, that the ante-nuptial contract in question was fairly and voluntarily entered into by the complainant when sui juris, and, being such, divested and divests her of all claim of dower, without reference to the amount of the consideration which she may have been satisfied to accept instead of dower, or to the extraneous circumstances set forth in the opinion of the Court below, and by which its judgment appears to have been controlled. That they are no more in the position of parties seeking to enforce specific performance than any other defendants, in any case, who set up the complainant's contract as against pretensions in the bill which are inconsistent with it. On the contrary, the complainant is in the attitude of seeking to impeach her own deed, and is, therefore, subject to the onus which attaches to that proceeding. 1 Washburne on Real Property, 263 to 270. 1 Bright on Husband & Wife, 447-48. 2 Sugden on Vendors, 219. Power vs. Sheill, 12 Eng. Ch. Rep., 147. S. C., 1 Molloy, 296. Dyke vs. Randall, 13 Eng. L. & E. Rep., 411. Stilly vs. Folger, 14 Ohio, 610. Cauley vs. Lawson, 5 Jones' Eq. (N. C.) 134. Findley vs. Findley, 11 Grattan, 437. Mory vs. Michael, 18 Md. Rep., 227. Roper on Husband & Wife, 470, &c. Gelser vs. Gelser, Bailey's Eq. Rep., 389. 11 Md. Rep., 419. 1 Code, Art. 16, sec. 30.

George H. Williams and Joseph L. Brent, for the appellee:

I. To bar a widow of dower in this State, some estate should be settled by her husband by jointure or settlement before marriage. 1 Code, Art. 93, sec. 289. In this case there is no proof of any such settlement.

The marriage agreement, relied on in the answers, does not satisfy at law the requirements of the Code, it being, at best, nothing but an agreement, and its specific performance is practically sought to be enforced in this case. This a Court of Equity will not do, because its legal existence is not fairly established. Though executed before justices, there is no evidence that the husband ever acted upon it, or proof that he ever designed to act upon it. The failure to record it, and keeping it in his desk privately, is presumptive proof that he did not mean to act upon it. The recital in the paper that she was in possession of property both real and personal, is not true, even the deed of the ground-rent of $24 per annum, though dated before the marriage, is found not recorded at his death, and there is no proof even of its delivery to her in his lifetime, before or after marriage. Power vs. Shiel, 1 Molloy's Rep., 296. 12 Cond. Eng. Ch. Rep., 148. McContee vs. Teller, 2 Paige, 511.

Even if the legal existence of the paper be established, yet it does not, on its face, express itself to be in lieu of dower, and the provision for the wife is not only inadequate, but it could not have been fairly and intelligently entered into, and a Court of Equity will not permit nor lend its aid to so monstrous and unreasonable an agreement to bar one of the most highly favored of legal rights. On the one side, the proof is of a widow in a state of destitution and supported by charity, on the other, an estate of upwards of $54,000, in which she is entitled to dower sought to be defeated by a pretended marriage agreement, and a deed of $4000 worth of property not delivered.

II. At common law a woman had no ability, by any antenuptial contract, to bar herself of her claim to dower in the lands of her intended husband.

The estate of dower was created and fostered by the ancient policy of the law; and even a jointure regularly settled on the woman, in anticipation of marriage, did not, by the common law, divest her of her dower. But by the 27th Henry 8th, it was first provided that when an estate in lands was secured to a wife by way of jointure, previous to marriage, it should bar her claim of her dower, but if the jointure was settled on her during her coverture, she had the election of accepting the jointure, or of enforcing her dower.

This statute was in force in Maryland--see Kilty's Statutes--and provides the only method by which antecedent to marriage, the woman can be barred of her dower. But sec. 9 of this statute regarded the right to dower as a valuable right, and that the jointure accepted by the wife was the consideration for her...