Oesau v. Oesau's Estate
| Decision Date | 01 May 1914 |
| Docket Number | No. 96.,96. |
| Parties | OESAU v. OESAU'S ESTATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a Judgment of the Circuit Court for Calumet County; George W. Burnell, Circuit Judge. Reversed.
Proceedings involving the validity and scope of an antenuptial contract.
In January, 1901, Tjark P. Oesau, a widower with several adult children, and Amelia Arps, the plaintiff, then a widow with several grown up children, intermarried. They were well to do German people. He was about sixty-five years of age and possessed a fortune around $17,000. She was sixty-two years of age and possessed a fortune of about $7,000, derived from her deceased husband's estate. She was a woman of considerable business experience and of more than ordinary intelligence, but did not read or understand English words. She was executrix of her first husband's will and attended to the business in an efficient manner. After the settlement of the estate she attended to her business in a frugal and creditable manner. She had a small house worth $700 to $1,000, with suitable furniture therefor. The two persons lived a few miles apart but had been acquainted many years. They were engaged to be married a few weeks before the union took place. Preparatory therefor they went to the office of a reputable attorney to have an antenuptial contract executed. The paper, after having been prepared, was read by the lawyer to Mrs. Arps. He could speak German to some extent and did the best he could to make her understand the paper. Mr. Oesau had told her what it was for. She did not get a full understanding of the language used but fully appreciated that if she and Mr. Oesau executed it and then intermarried, it would secure to her capacity to possess and dispose of her property the same as if she were single and he would be likewise protected as to his property. With that understanding the paper was executed in duplicate. One of the two papers was delivered to her and the other was retained by him. At the same time Mr. Oesau proposed to take over Mrs. Arps' homestead and give her $700 therefor and that they should reside there. She accepted such proposal. The deed was made, the $700 paid and, shortly after the marriage, they moved to the place and there resided until Mr. Oesau died. Sometime after the marriage Mrs. Oesau visited a lawyer, who could read and speak German, for the purpose of having her will drawn. At that time she exhibited the contract and was told, as she testified, that it did not amount to anything. Mr. Oesau and plaintiff lived harmoniously together for some eleven years when he died testate. He willed his property in harmony with the antenuptial contract, only making a nominal provision for Mrs. Oesau and, in explanation thereof, attached the contract to his will. She possessed her duplicate of the contract from the time it was made. The other duplicate, the day after its date, was duly recorded in the office of the register of deeds of Calumet county. His estate was of the value of about $20,000. In due time she renounced under the will and claimed statutory rights. The executor contested her claim because of the antenuptial agreement. The county court decided that it was void. The circuit court made findings in harmony with the foregoing and decided that the contract did not relinquish prospective statutory rights; moreover, that, under the circumstances, it was presumably void, casting the burden of proof on the executor to show that Mrs. Oesau understood the purport thereof when she signed it and that such proof was not produced.
The contract so far as necessary to be examined, is as follows:
“Witnesseth, that whereas, said parties hereto are about to intermarry, it is hereby agreed and understood by and between them that each of said parties hereafter, notwithstanding their intermarriage, shall own and can dispose of any and all real and personal property, money, notes, bonds or securities, of any and all kinds, the same as if no such marriage ever took place between said parties; that is to say, that any and all property, real and personal, moneys, notes, mortgages and securities now owned or that he may hereafter own by said first party, that he can alone without the signature, consent or the will of said second party sell, deed, mortgage and transfer the same himself just the same as if he still was a widower; and said second party hereby agrees and binds herself to sign at any time any deed or mortgage of any real estate now owned, or which may hereafter be owned by said Tjark P. Oesau, and that all property, real and personal, money, notes, mortgages and securities owned or belonging to said first party at the time of his death, if he dies intestate, shall go to and belong to the present children and their legal descendants of the said Oesau, without any claim, charge, dower or homestead right or interest of said Amelia Arps therein as the wife of said Tjark P. Oesau; and it is hereby agreed and understood by and between both of said parties that any and all property, real, personal, money, notes, mortgages or securities now owned or which may hereafter be owned by said Amelia Arps, shall belong to and be exclusively owned and controlled by her, and that she can at any time sell, deed, give away and dispose of all thereof at any time and in whatever way she may see fit, the same as if she were a widow and unmarried, and that if she should die intestate, then that all of her property, money, notes, securities, real and personal, shall descend and go to and belong to her present children or their descendents, and not to Oesau or his heirs; and said first party promises and agrees to at any time when asked by said second party to sign any deed, mortgage, bill of sale or other paper necessary to carry out the purposes and intentions of this contract and agreement, and said Oesau hereby waives and gives up any right or claim which he may have as and by tenancy in curtesy if he should survive said second party, in any property which she may own at her death, and to a full and liberal compliance with the terms and conditions of this agreement and contract, we, and each of said parties for themselves, and for and in behalf of their respective heirs, executors and administrators and assigns bind themselves to faithfully comply therewith in letter and spirit; and that the consideration therefor is the sum of one dollar paid by each of said parties to the other, and other good and valuable considerations.”
Judgment was ordered in accordance with the foregoing.
James Kirwan, of Chilton, and Nash & Nash, of Manitowoc, for appellant.
J. E. McMullen, of Chilton, for respondent.
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