Ray v. Ray's Ex'x

• Decision Date: 23 May 1933
• Citation: 249 Ky. 347,60 S.W.2d 935
• Parties: RAY v. RAY'S EX'X et al.
• Court: Kentucky Court of Appeals

60 S.W.2d 935

249 Ky. 347

RAY v. RAY'S EX'X et al.

Court of Appeals of Kentucky

May 23, 1933

Appeal from Circuit Court, Hardin County.

Suit by E. R. Ray's executrix and others against Emma E. Ray. From the judgment rendered, the defendant appeals.

Affirmed in part, and reversed in part, and cause remanded in accordance with opinion.

J. D Hardin, of Louisville, and J. E. Wise, of Elizabethtown, for appellant.

Layman & Layman, of Elizabethtown, for appellees.

CLAY Justice.

By contract dated July 22, 1915, and acknowledged and recorded on September 21, 1915, Elias R. Ray released all claim to all personal and real estate then owned or thereafter acquired by Mrs. Emma Berry, who was to become his wife, and Mrs. Berry released all claim she might lawfully have by becoming the wife of Elias Ray to all the personalty and realty then owned by him. Several years later E. R. Ray sued his wife, Emma E Ray, for divorce and she counterclaimed for alimony. While the suit was pending they entered into a written agreement dated March 18, 1931, stating that all claims had been adjusted and that each acknowledged from the other satisfaction of every character of claim whatsoever. The agreement further provided that defendant's claim for alimony and maintenance should be dismissed, and recited that it was made in contemplation of separation which was to be permanent, and covered all property rights which either might have in the property of the other. As consideration for this contract, Mrs. Ray obtained the surrender and cancellation of a note which she owed her husband, and also a $40 note which her son had executed to her husband. On December 1, 1931, Ray and wife, desiring to live together, entered into a further agreement continuing in force the contract of March 18, 1931 and stipulating that each relinquished all claims he or she had to the property of the other by reason of the marital relation.

E. R Ray died in the year 1932, leaving a will by which he bequeathed $1 to his wife, Emma Ray, and the remainder to his children. Emma Ray renounced the will in writing and elected to take dower and her distributable share of her husband's estate.

Agnes G. Grimes, who was nominated and qualified as executrix of the will, together with the other devisees, brought this suit against the widow, Emma E. Ray, for the purpose of having the rights of the heirs and the widow under the contracts and will determined. In her answer the widow denied that the contract was executed on July 22, 1915, and alleged that it was executed several weeks after their marriage. She also alleged that the other two contracts were void. On completion of the issues the parties announced ready for trial and the court adjudged that the burden of proof was on the widow. The widow offered as a witness one of her attorneys who testified in substance, over the objection of plaintiffs, that after the marriage the decedent and his wife discussed with him the making of a marriage contract. This evidence was afterwards excluded by the court, and judgment was rendered upholding the antenuptial contract of July 22, 1915, declaring the two subsequent contracts invalid, and adjudging that plaintiff recover of the defendant the sum of $278, the amount of her note surrendered to her and canceled by the agreement, with interest from date, and that she restore to the executrix the $40 note which E. R. Ray held against her son, and which was surrendered to her by reason of the contract. From that judgment the widow appeals.

It is first insisted that the court erred in placing the burden of proof on appellant. Without attempting to announce any general rule as to the burden of proof in cases of this kind it must not be overlooked that by the antenuptial contract in question each of the parties released all claim to the property of the other, and there was no showing whatever that appellant had no property at the time the contract was signed. That being true, the case is ruled by Early v. Early, 182 Ky. 757, 207 S.W. 466, 467, wherein the court said: "But it is insisted that the court erred in denying the defendants the burden of proof. Since it is admitted that the husband had property, there might be some merit in this contention, if by the contract in question plaintiff had released all her interest in her husband's estate, and there was no corresponding obligation on the part of the husband. Pierce v. Pierce, 71 N.Y. 154, 27 Am. Rep. 22; Tilton v. Tilton, 130 Ky. 281, 113 S.W. 134, 132 Am. St. Rep. 359. But where, as in this case, the agreement consists of mutual relinquishments of interests in each other's estates, and the contract does not show, and the pleadings do not admit, that plaintiff had no property, there is no basis for any presumption against the validity of the...