Remington v. Remington

• Decision Date: 04 October 1920
• Docket Number: 9608.
• Parties: REMINGTON v. REMINGTON et al.
• Court: Colorado Supreme Court

193 P. 550

69 Colo. 206

REMINGTON v. REMINGTON et al.

No. 9608.

Supreme Court of Colorado

October 4, 1920

Error to District Court, Larimer County; Robert G. Strong, Judge.

Action by Melissa L. Remington against Guy A. Remington, as executor of the estate of D. D. Remington, deceased, and Mrs. Darleen Moore and others, heirs at law and legatees under the will of D. D. Remington, deceased. To review a judgment for defendants, plaintiff brings error.

Affirmed.

Corydon Rood, of Loveland, and R. W. Fleming, of Ft. Collins, for plaintiff in error.

Ab. H Romans, of Loveland, and Paul W. Lee and George H. Shaw, both of Ft. Collins, for defendants in error.

TELLER J.

The parties to this cause submitted to the district court an agreed statement of facts, upon which they asked for a determination of their respective rights. The court found for the defendants in error. Plaintiff in error brings the cause here for review.

The plaintiff in error and one D. D. Remington, now deceased, became husband and wife at a time when each had children by former marriages and property in their respective rights. Some months after marrying, they entered into a written contract, the important parts of which are as follows:

'Whereas each of said parties had in his or her own right certain real and personal property at the time of said marriage and were also the father and mother, respectively, of children by former marriages; and

'Whereas, before their marriage with each other, and in consideration thereof, each of the said parties agreed with the other that none of their respective property rights should in any way become affected or changed by reason of said marriage:

'Now, therefore, in consideration of the foregoing premises, and of the mutual covenants herein contained, the party of the first part hereby waives, releases, foregoes, and disclaims all his rights in any and all property, both real, personal, and mixed, wheresoever situate, of which the party of the second part, is or may become seized or possessed, and hereby expressly waives all right to inherit from said second party under the laws of any and all states of the United States, and hereby agrees that the party of the second part shall have the right to dispose of all of her property by will and in case the party of the second part fails to dispose of any of her property, of any kind, by will, then said property shall descend to her legal heirs, other than the party of the first part, and he shall not inherit anything from her.'

There was a similar covenant upon the part of the wife waiving claim upon the property of the husband. The husband left a will in which, in accordance with the said agreement, no provision was made for his widow, and she now repudiates the contract, and claims one-half of the estate under the statute.

It is contended by the plaintiff in error that the contract made before marriage, to which reference is made in the written instrument, was void within the statute of frauds, because it was oral; it being her contention that it is a promise in consideration of marriage. She contends that the written contract is ineffectual for want of consideration. We do not agree with either of these positions.

It is true that in the recital it is stated that the parties, in consideration of marriage, made the agreement; but the agreement itself shows that it was not so...