Norrell v. Thompson

• Decision Date: 13 October 1949
• Docket Number: 8 Div. 456.
• Citation: 42 So.2d 461,252 Ala. 603
• Parties: NORRELL v. THOMPSON et al.
• Court: Alabama Supreme Court

42 So.2d 461

252 Ala. 603

NORRELL v. THOMPSON et al.

8 Div. 456.

Supreme Court of Alabama

Oct. 13, 1949

Marion F. Lusk, of Guntersville, for appellant.

Lanier Price, Shaver & Lanier and M. H. Lanier, Jr., of Huntsville, for appellees.

SIMPSON, Justice.

Bill in equity by appellant, as the wife of Robert J. Norrell deceased, against his devisees and the executor under his will, to have declared appellant's dower, homestead, and quarantine rights in his real estate.

Appellant and Norrell intermarried in December, 1939, and lived together spasmodically for a total period of only a few months. He died testate in 1946, seized of certain realty consisting of about 230 acres in Madison County, Alabama, and personalty of nominal value. By his will his entire estate was devised and bequeathed to his son and daughter, the children of his first marriage, two of the appellees in this case. Appellant at the time of the marriage also owned property in Guntersville, Alabama.

In defense of the bill the appellees made answer by setting forth and exhibiting a duly executed ante-nuptial agreement between appellant and her deceased husband, made immediately prior to the marriage, which provided substantially that the parties did mutually agree to relinquish any and all rights in the properties of each other upon the death of either party.

On a final submission of the case on evidence taken before the register, the lower court dismissed the bill and from this adverse decree the appeal has proceeded.

Ante-nuptial contracts between intended husband and wife have long been enforced in courts of equity, Webb v Webb's Heirs, 29 Ala. 588 and now contracts between husband and wife are specifically sanctioned by statute (Code of Alabama 1940, Title 34, § 74). But whether ante-nuptial or post-nuptial, such contracts are scrutinized by the courts because of the confidential relationship of the parties and certain safeguards have been declared as necessary to protect the interests of the wife or intended wife, under the old theory that the husband is the dominant of the two parties. Webb v. Webb's Heirs, supra; Smith v. Smith, 245 Ala. 420, 17 So.2d 400; Merchants' Nat. Bank v. Hubbard, 222 Ala. 518, 133 So. 723, 74 A.L.R. 646; Barker v. Barker, 126 Ala. 503, 28 so. 587.

The governing principle as regards the enforcibility of such contracts on the part of the husband or his representative is perhaps bets expressed in Merchants' Nat. Bank v. Hubbard, supra, wherein the court said: '* * * we think the rule requires that the consideration be adequate, and the entire transaction fair, just, and equitable from the wife's view, or that it was freely and voluntarily entered into with competent independent advice and full knowledge of her interest in the estate and its approximate value, and that the husband or his representatives have the burden in that respect.' 222 Ala. 524, 133 So. 728.

Decision here turns on whether this antenuptial agreement, under the evidence as adduced, meets the requirement of that rule.

From the evidence it appears, and the lower court so found, that the properties owned by the respective parties immediately prior to their marriage were about of equal value and we cannot with any degree of certainty take issue with this finding having in mind that the matter cannot be determined with exact mathematical accuracy and that the court is not 'disposed to institute a nice comparison,' just so there is no great disparity in value. Webb v. Webb's Heirs, supra, 29 Ala. 588, 601(4); Merchants' Nat. Bank v. Hubbard, supra, 222 Ala. 518, 524(5), 133 So. 723, 74 A.L.R. 646; Gould v. Womack, 2 Ala. 83. It further appears from the evidence, and the appellant so admitted in her testimony, that she entered into the agreement freely and voluntarily, that she was not acting under duress, and further that the attorney...