Rash v. Bogart

• Decision Date: 09 March 1933
• Docket Number: 8 Div. 466.
• Citation: 146 So. 814,226 Ala. 284
• Parties: RASH v. BOGART et al.
• Court: Alabama Supreme Court

146 So. 814

226 Ala. 284

RASH v. BOGART et al.

8 Div. 466.

Supreme Court of Alabama

March 9, 1933

Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.

Bill in equity by W. R. Bogart, as administrator, with will annexed of the estate of L. R. Rash, deceased, against Sarah Jane Rash, to construe the will and enforce a separation agreement, and cross-bill by Sarah Jane Rash against original complainant and others. From the decree respondent appeals and complainant and cross-respondents cross-assign errors.

Reversed and rendered.

Ernest Parks, of Scottsboro, for appellant.

Proctor & Snodgrass, of Scottsboro, for appellees.

BOULDIN Justice.

The vital inquiry in this cause is whether a postnuptial and postseparation agreement between husband and wife shall be given effect in equity, in bar of the right of the widow, after the husband's death to dissent from his will, and take dower, homestead, and exemptions of personalty, or otherwise share in his estate.

This agreement reads:

"State of Alabama, Jackson County.

"Know all men by these presents,

"That for and in consideration of the sum of One Thousand ($1000.00) Dollars to me in hand paid, receipt whereof is hereby acknowledged, I, Sarah Jane (Gentry) Rash, do hereby release all claims to homestead exemptions, dower interests and all exemptions of any kind which may accrue to me at the death of my husband, L. R. Rash.

"It is the purpose of this instrument to release the estate of L. R. Rash from all claims that may accrue to me at his death as his widow and that said L. R. Rash may deed, or will, his land to his children.

"It is also agreed that the said L. R. Rash hereby releases all claims that he may have against my estate in the event he survives me.

"L. R. Rash

"Witness:

Avery Steele

"Sarah Jane Rash.

"Witness

J. B. Winn"

The pertinent facts, some undisputed, and some supported by the weight of the evidence as we find them on a careful study of the record, are substantially as follows:

Leroy Rash and Sarah Jane Gentry were lawfully married in March 1920. He was then 73 years old and had four children of a former marriage. She was 65 years old, and had no children. After living together some 10 years, they separated. About a month after separation, date not given, the parties met in the First National Bank of Stevenson, several miles from their homes, where Mr. Rash did his banking business, and, after a conference, Judge W. R. Bogart, an officer of the bank and former judge of probate, was requested to and did draw the agreement, which, after being read to the parties, was executed, and Mr. Rash paid the $1,000 therein agreed.

Mr. Rash died July 8, 1931, something less than a year after this transaction. His real estate at the time of the agreement consisted of a farm of 150 acres and cut-over mountain timbered lands of probably 450 acres. By the weight of evidence the value of the whole was $5,000. He had $2,500 cash in the bank, and farm animals, etc., probably worth $500, a total estate of approximately $8,000 in value.

The record is entirely silent as to who promoted the conference at Stevenson, or who suggested the terms of agreement.

Prior to this marriage Mrs. Rash had resided with Mr. and Mrs. J. B. Winn. It appears Mrs. Winn was her sister. After the separation, she returned to the same home or that of Mr. and Mrs. Avery Steele. Mrs. Steele was her niece, and a daughter of Mr. and Mrs. Winn.

Messrs. Winn and Steele were present at the conference in Stevenson and signed as witnesses to the agreement. It appears the same relations existed between them and Mrs. Rash to the time of taking testimony. Neither of them was examined as witnesses.

Mrs. Rash's neighbors testify to her subsequent declarations indicating she knew clearly the purport of the agreement, and her purpose to abide by it. She did not testify.

In 1923 Mr. Rash executed his will, dividing and devising his lands to his four children, making a bequest of $1,000 to his wife, and residue of personalty to the children.

Appellees argue that there was a parol antenuptial agreement that the wife should have $1,500 in full of her interest in the estate; that $500 was paid her at or about the time of marriage; that the will was intended to give her the residue at decedent's death; and that this agreement, giving her the money at the time, was in consummation of such antenuptial agreement. It is admitted that the husband did give his wife the $500; but evidence of such antenuptial agreement is wanting, unless by remote inference. We need not decide whether such evidence would be admissible in view of the statute of frauds.

While there is some evidence that these old people came to a separation because of a difference touching the execution of deeds to the several children for the lands allotted to them, we think a right decision in the case cannot be reached by trying to place the blame for their separation. "A contract by the widow to release dower and distributive share, made before or during coverture, will be enforced in equity," but "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." Merchants' Nat. Bank of Mobile v. Hubbard, 222 Ala. 518, 523, 524, 133 So. 723, 727, 74 A. L. R. 646.

This rule, well supported by authority, was quite apt and adequate in dealing with the case then in hand, where it was sought to raise an estoppel against the widow making a dissent from the will of her husband because of words of approval while yet living with him, together with words and acts after his death said to be inconsistent with a purpose to dissent.

The exacting burden thus cast upon the husband, or those standing in his right, has its basis in the nature of such transactions, and particularly the intimate confidential relations between husband and wife; the husband, unless otherwise shown, being treated as the dominant party.

Our statute now gives express power to the wife to make contracts with her husband, but still subject to rules of law touching contracts between persons standing in confidential relations. Code, § 8272. This includes the power to convey her lands to the husband. Osborne v. Cooper, 113 Ala. 405, 21 So. 320, 59 Am. St. Rep. 117.

These rules recognize the equally obvious fact that, when confidential relations are severed under conditions disclosing that the dominating influence presumed to have existed theretofore has been removed, and the party is thereafter acting at arm's length, or on the advice of friends and kindred desiring to conserve his or her interest, the presumption of undue influence is overcome.

In the case before us there had already been a severance of the family relation, a separation evidently intended by the wife as final, an estrangement in fact, a return to her own people whose interest was her interest, and evidently giving sanction to the settlement which was made.

The relation of husband and wife is per se a confidential relation. This means such relation in fact, the family relation in connection with the legal bonds that make them husband and wife. The legal obligations of...