Neis' Estate, In re

• Decision Date: 09 December 1950
• Docket Number: No. 38036,38036
• Parties: In re NEIS' ESTATE. NEIS et al. v. NEIS.
• Court: Kansas Supreme Court

Page 110

225 P.2d 110

170 Kan. 254

In re NEIS' ESTATE NEIS et al. v. NEIS.

No. 38036.

Supreme Court of Kansas.

Dec. 9, 1950.

Rehearing Denied Feb. 5, 1951.

Syllabus by the Court.

1. Where an antenuptial contract is freely and understandingly made and is free from fraud, it will be enforced.

2. In a proceedings to enforce an antenuptial contract where the trial court heard the appeal from the probate court on the record that had been made in probate court, and made its findings of fact we will reexamine that record and make our own findings of fact and conclusions of law.

3. In an action such as that described in the foregoing paragraph of the syllabus all the surrounding facts and circumstances are considered and it is held that the antenuptial contract in question was freely and understandingly made and was free from fraud.

4. In an action such as that described in the second paragraph of this syllabus, it is held an expectant wife cannot by an antenuptial contract waive her future homestead rights in the homestead of herself and her husband-to-be, later occupied by them as a homestead and occupied by them as a homestead at the death of her husband.

5. In an action such as that described in paragraph 12 of this syllabus it is held the wife can and in this case did by the execution of the antenuptial contract in question waive her statutory rights to have personal property set off to her.

Charles A. Springer, of Lawrence, argued the cause and was on the brief for the appellants.

Robert Stone, of Topeka, argued the cause, and Richard B. Stevens and John W. Brand, both of Lawrence, were on the brief, for the appellee and cross-appellant.

SMITH, Justice.

This was a proceeding to determine the validity of an antenuptial contract and to determine the rights of the surviving widow in the assets of the estate of her deceased husband. The trial court upheld the contract and held by widow to be entitled to certain statutory rights. The executor and certain legatees have appealed and the widow has cross-appealed.

The executor named filed a petition for probate of the will of Carl Neis alleging testator died August 14, 1948, leaving some twenty-one devisees and at the time of death owned real property worth $40,000 and personal property worth $15,000; that he was named executor in the will and was a resident of Douglas county. He prayed for an order admitting the will to probate and naming him executor.

The will referred to a contract between testator and his wife, bequeathed her $15,000, left specific bequests to named persons and left the residue to his brothers and sisters and heirs of a deceased brother or sister and provided these heirs should take the share the brother or sister would have taken had they survived. The will was duly admitted to probate and on September 17, 1948, an inventory was filed as follows:

'Real Estate $54,187.00

Corporation Stock $30,175.00

Bonds, Mortgages & other written evidences of debt $32,634.75

All other personal property 9,535.91

Total appraised Value of Estate $126,532.66' On December 9, 1948, the widow filed her election to take under the law rather than under the will and on the same date filed her petition to set aside homestead and personal property under the statutes. In this she alleged that she was the widow; that there were no minor children and at the time of his death she and the testator occupied a described quarter sections as a homestead; that it was then occupied as her homestead and she desired it to be set apart to her as a homestead and she selected certain personal property, including a described automobile and $750 to be allowed her from the estate in accordance with G.S. 1947 Supp. 59-403.

On December 16, 1948, the executor filed a petition to determine the rights of the widow in the estate under an antenuptial contract between her and the testator. In this he alleged that he was, in addition to being executor, one of the beneficiaries under the will. He pointed out the clause of the will bequeathing Ora $15,000 and a clause directing the executor to sell the property and to pay the bequests. He further alleged that on December 20, 1945, deceased and Ora entered into an antenuptial contract, which was still in full force and effect. He next referred to the petition to set aside homestead and personal property and to her election to take under the law and further stated that in his judgment all the property should be sold by him as directed in paragraph X of the will. He alleged that he could not carry out the terms of that paragraph until the court had determined the claim of Ora, the widow; that she and all the devisees were interested parties, as well as the Internal Revenue Department of the United States; that in accordance with the antenuptial contract Ora should receive $15,000 and no more and she was barred from claiming any homestead rights or other rights in the property with the exception of the $15,000 mentioned. He prayed for an order setting the case for hearing, declaring the antenuptial agreement to be in full force at that time and at the time of the death of the deceased and that Ora be barred upon any rights in the estate with the exception of $15,000 and that her petition to set aside the homestead and personal property rights be denied. The antenuptial contract, to which reference has been made, was as follows:

'This Indenture, Made this 20 day of December, 1945, between Carl Neis of Eudora, Kansas, of the one part, and Ora E. Cooper of Lawrence, Kansas, of the other part.

'Whereas, a marriage is intended to be solemnized between said parties, and in view of the fact that after their marriage, in the absence of any agreement to the contrary, their legal relations and powers as regards property may, by reason of some change in their domicile, or otherwise, be other than those of their present domicile, or other than those which they desire to have apply to their relations, powers and capacities; and

'Whereas each of the parties hereto has disclosed to the other the full amount of all property owned by each of said parties:

'Now This Indenture Witnesseth, that each of them, the said Carl Neis and Ora E. Cooper hereby agrees, covenants and declares it to be his or her desire that during their marriage each of them shall be and continue completely independent of the other as regards the enjoyment and disposed of all property, whether owned by either of them at the commencement of the marriage or hereafter acquired, or coming to them or either of them during the marriage. And each of them hereby agrees and covenants with the other, in view and consideration of said proposed marriage, that so far as is legally possible by their private act and agreement, all the property belonging to either of them at the commencement of the marriage, or acquired by or coming to either of them during the marriage, shall be held and be enjoyed by him or her, and be subject to his or her disposition as his or her separate property in the same manner as if the said proposed marriage had never been celebrated. And if either party desires to sell or mortgage his or her property or any part thereof, the other agrees to join in said deed or mortgage without any consideration other than the marriage herein referred to.

'And the parties hereto expressly further agree and covenant to and with each other, that upon the death of either, the survivor, shall not have and will not assert any claim, interest, estate or title, under the laws of any state, because of such survivorship, in or to the property, real, personal or mixed, or life insurance, of which such deceased party die seized or possessed, except as hereinafter provided: and such survivor hereby relinquishes to the heirs, devisees, administrators, executors and assigns of such deceased party, any and all of his or her claim, distributive share, interest, estate, or title, that he or she would be entitled to, as the surviving husband or wife respectively; and agrees upon demand, to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of such deceased party any and all such claim, interest, estate, right or title, and upon demand to make, execute and deliver to the heirs, devisees, administrators, executors and assigns of such deceased party any and all acquittances, assignments, assurances, deeds, instruments and receipts, that may be necessary and required to effectually carry out and make effective, his or her agreements herein contained.

'It is distinctly understood and agreed between the parties hereto that if Ora E. Cooper shall remain with and be the wife of the other party, Carl Neis up until the date of his death then she shall receive from his estate the sum of Fifteen Thousand Dollars ($15,000.00), but if she does not remain with and be the wife of Carl Neis up until the date of his death then in that event she shall not receive said Fifteen Thousand Dollars ($15,000.00).

'The parties hereto have read the above and foregoing agreement and each of them knows the contents thereof, and fully understand all the terms and conditions contained in this contract.

'To the full and proper performance of all the foregoing agreements, covenants, and stipulations, the parties hereto, respectively bind themselves, their heirs, devisees, executors, administrators and assigns.

'In Witness Whereof, the said parties have hereunto set their hands and seals at Lawrence, Kansas, this 20 day of December, 1945.

'Carl Neis

'Ora E. Cooper.'

A power of attorney given testator by Ora was attached to the contract. This provided as follows:

'Know All Men By These Presents, That I the undersigned, Ora E. Cooper of Lawrence in the county of Douglas, State of Kansas, have made, constituted and appointed, and by these presents, do make, constitute and appoint Carl Neis of Eudora, in the county of Douglas, State of Kansas, my true and lawful attorney in fact, for me and in my name...